Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Corporations Act.

PART ICompanies with Share Capital

Application of Part

Marginal note:Application

2 This Part applies to

• (a) all companies incorporated under it or the incorporation of which is continued under it;

• (b) companies incorporated under the Companies Act, chapter 119 of the Revised Statutes of Canada, 1886, or to which that Act applied before the 15th day of May 1902, except loan companies;

• (c) all companies incorporated under the Companies Act, 1902;

• (d) all companies incorporated under the Companies Act, chapter 79 of the Revised Statutes of Canada, 1906, or to which that Act applied;

• (e) all companies incorporated under the Companies Act, chapter 27 of the Revised Statutes of Canada, 1927.

Interpretation

Marginal note:Definitions

• 3 (1) In this Part and in all letters patent and supplementary letters patent issued under

  accounts receivable

  comptes à recevoir

  accounts receivable includes existing or future book debts, accounts, claims, moneys and choses in action or any class or part thereof and all contracts, securities, bills, notes, books, instruments and other documents securing, evidencing or in any way relating to the same or any of them, but shall not include uncalled share capital of the company or calls made but not paid; (comptes à recevoir)

  court

  cour

  court means

  • (a) in Ontario, Nova Scotia, British Columbia and Newfoundland, the Supreme Court,

  • (a.1) in Prince Edward Island, the Trial Division of the Supreme Court,

  • (b) in Quebec, the Superior Court,

  • (c) in Manitoba, Saskatchewan, Alberta and New Brunswick, the Court of Queen’s Bench, and

  • (d) in Yukon, the Supreme Court of Yukon, in the Northwest Territories, the Supreme Court of the Northwest Territories, and in Nunavut, the Nunavut Court of Justice; (cour)

  debenture

  débenture

  debenture includes bonds, debenture stock, and any other securities of a company that constitute or are entitled to the benefit of a charge on the assets of the company; (débenture)

  Department

  ministère

  Department means the Department of Consumer and Corporate Affairs; (ministère)

  director

  administrateur

  director includes any person occupying the position of director by whatever name he is called; (administrateur)

  document

  document

  document includes notice, order, certificate, register, summons or other legal process; (document)

  equity share

  action donnant droit de vote

  equity share means any share of any class of shares of a company carrying voting rights under all circumstances and any share of any class of shares carrying voting rights by reason of the occurrence of any contingency that has occurred and is continuing; (action donnant droit de vote)

  judge

  juge

  judge means in the said respective Provinces and Territories a judge of the said courts respectively; (juge)

  Minister

  Ministre

  Minister means the Minister of Industry; (Ministre)

  mortgage

  hypothèque

  mortgage includes charge and hypothec; (hypothèque)

  officer

  fonctionnaire

  officer means the chairman or vice-chairman of the board of directors, the president, vice-president, secretary, treasurer, comptroller, general manager, managing director or any other individual who performs functions for the company similar to those normally performed by an individual occupying any such office; (fonctionnaire)

  private company

  compagnie privée

  private company means a company as to which by letters patent or supplementary letters patent

  • (a) the right to transfer its shares is restricted,

  • (b) the number of its shareholders is limited to fifty,

  not including persons who are in the employment of the company and persons, who, having been formerly in the employment of the company, were, while in that employment, and have continued after the termination of that employment to be shareholders of the company, two or more persons holding one or more shares jointly being counted as a single shareholder, and

  • (c) any invitation to the public to subscribe for any shares or debentures of the company is prohibited; (compagnie privée)

  public company

  compagnie publique

  public company means a company that is not a private company; (compagnie publique)

  real estate or land

  immeuble ou terre

  real estate or land includes messuages, lands, tenements, and hereditaments of any tenure, and all immovable property of any kind; (immeuble ou terre)

  securities

  valeurs

  securities means any shares of a company or any debenture or other obligations of a company, whether secured or unsecured; (valeurs)

  shareholder

  actionnaire

  shareholder means every subscriber for or holder of a share in the capital stock of the company and includes the personal representatives of a deceased shareholder and every person who agrees with the company to become a shareholder; (actionnaire)

  the company or a company

  la compagnie ou une compagnie

  the company or a company means any company to which this Part applies and “another company” or “any other company” means any company wherever or however incorporated; (la compagnie ou une compagnie)

  undertaking

  entreprise

  undertaking means the business of every kind which the company is authorized to carry on. (entreprise)

• Marginal note:Special resolution

  (2) A by-law mentioned in section 20, subsection 29(1), section 51 or 52 may be referred to as a “special resolution”.

Preliminaries

Marginal note:Provisions directory only

4 The provisions of this Part relating to matters preliminary to the issue of the letters patent or supplementary letters patent are directory only, and no letters patent or supplementary letters patent issued under this Part shall be held void or voidable on account of any irregularity or insufficiency in respect of any matter preliminary to the issue of the letters patent or supplementary letters patent.

Formation of New Companies

Marginal note:Incorporation of companies

• 5 (1) Subject to this section, the Minister may, by letters patent under his seal of office, grant a charter to any number of persons, not less than three, being eighteen years of age or over and having power under law to contract, who apply therefor, constituting such persons, and such other persons as thereafter become shareholders in the company thereby created, a body corporate and politic for any of the objects to which the legislative authority of the Parliament of Canada extends.

• Marginal note:Objects prohibited

  (2) The Minister may not incorporate a company whose objects are or include

  • (a) the construction or working of telegraph or telephone line within Canada; or

  • (b) the business of banking or the issue of paper money.

• Marginal note:Insurance, trust and loan companies

  (3) The Minister may not incorporate a company whose objects are or include

  • (a) the business of insurance within the meaning of the Canadian and British Insurance Companies Act except as authorized by that Act;

  • (b) the business of a trust company within the meaning of the Trust Companies Act except as authorized by that Act;

  • (c) the business of a loan company within the meaning of the Loan Companies Act except as authorized by that Act; or

  • (d) the construction or operation of a railway in Canada except as authorized by the Railway Act.

• Marginal note:Other special companies

  (4) Except as provided by sections 5.1 to 5.3, the Minister may not incorporate a company whose objects are or include

  • (a) the construction or operation of a pipeline for the transmission of oil or gas as defined in the National Energy Board Act;

  • (b) the construction or operation of a commodity pipeline as defined in the National Transportation Act; or

  • (c) the business of a money lender within the meaning of the Small Loans Act.

Marginal note:Oil and gas pipeline companies

• 5.1 (1) On an application therefor, concurred in by such Minister as may be designated from time to time by the Governor in Council, the Minister may incorporate a company under this Part whose objects are or include the construction or operation of a pipeline extending beyond the limits of a province for the transmission of oil or gas or both as defined in the National Energy Board Act.

• Marginal note:Rights and obligations

  (2) A company incorporated pursuant to this section is invested with all the powers, privileges and immunities conferred by the National Energy Board Act upon a company within the meaning of that Act in addition to those conferred by its letters patent, and is subject to all the limitations, liabilities and requirements imposed pursuant to that Act in addition to those imposed under this Act.

• Marginal note:Where conflict exists

  (3) In case of conflict between a provision of this Act, or a provision of any letters patent or supplementary letters patent issued thereunder, in respect of an oil or gas pipeline company and a provision of the National Energy Board Act applicable thereto, the provision of the National Energy Board Act prevails.

Marginal note:Commodity pipeline companies

• 5.2 (1) On an application therefor, concurred in by such Minister as may be designated from time to time by the Governor in Council, the Minister may incorporate a company under this Part whose objects are or include the construction or operation of a commodity pipeline, as defined in the National Transportation Act, extending beyond the limits of a province.

• Marginal note:Rights and obligations

  (2) A company incorporated pursuant to this section is invested with all the powers, privileges and immunities conferred by the National Transportation Act upon a commodity pipeline company within the meaning of that Act in addition to those conferred by its letters patent, and is subject to all the limitations, liabilities and requirements imposed pursuant to that Act in addition to those imposed under this Act.

• Marginal note:Where conflict exists

  (3) In case of conflict between a provision of this Act, or a provision of any letters patent or supplementary letters patent issued thereunder, in respect of a commodity pipeline company and a provision of the National Transportation Act or National Energy Board Act applicable thereto, the provision of the National Transportation Act or National Energy Board Act, as the case may be, prevails.

Marginal note:Money lenders

• 5.3 (1) On an application therefor, concurred in by such Minister as may be designated from time to time by the Governor in Council, the Minister may incorporate a company under this Part whose objects are or include the carrying on of the business of a money lender within the meaning of the Small Loans Act.

• Marginal note:Rights and obligations

  (2) A company incorporated pursuant to this section is invested with all the powers, privileges and immunities conferred by the Small Loans Act upon a small loans company within the meaning of that Act and is subject to all the limitations, liabilities and requirements imposed pursuant to that Act.

Marginal note:Applying for change of corporate status

• 5.4 (1) A company incorporated by Special Act of the Parliament of Canada whose objects are or include

  • (a) the construction or operation of a pipeline extending beyond the limits of a province for the transmission of oil or gas or both as defined in the National Energy Board Act,

  • (b) the construction or operation of a commodity pipeline, as defined in the National Transportation Act, extending beyond the limits of a province, or

  • (c) the business of a money lender within the meaning of the Small Loans Act,

  may apply to the Minister for letters patent continuing the company under this Part if at the time of the application the company is carrying on business and the application is authorized by a resolution approved by three-fourths of the votes cast at a special general meeting of the shareholders of the company.

• Marginal note:Idem

  (2) A company incorporated by Special Act of the Parliament of Canada

  • (a) whose objects do not include any of the objects mentioned in subsections 5(2) to (4) or mentioned in sections 5.1 to 5.3, or

  • (b) whose object do include any of the objects referred to in paragraph (a) but the company has not been carrying on any of those objects for five or more years,

  may apply for letters patent continuing the company under this Part if at the time of the application the company is carrying on business and the application is authorized by a resolution approved by three-fourths of the votes cast at a special general meeting of the shareholders of the company.

• Marginal note:Continuation as Part I company

  (3) The Minister may issue letters patent to the applicant company continuing it as a company under this Part.

• Marginal note:Effect of letters patent

  (4) Upon the issue of letters patent pursuant to this section,

  • (a) if the company is one described in paragraph (1)(a), section 5.1 applies as if the company had been incorporated pursuant to that section;

  • (b) if the company is one described in paragraph (1)(b), section 5.2 applies as if the company had been incorporated pursuant to that section;

  • (c) if the company is one described in paragraph (1)(c), section 5.3 applies as if the company had been incorporated pursuant to that section; and

  • (d) if the company is one described in subsection (2), this Part applies as if the company had been incorporated pursuant to subsection 5(1).

• Marginal note:Alteration

  (5) Where a company applies for letters patent under this section, the Minister may, by the letters patent, reduce, limit or extend the objects or powers of the corporation, alter its authorized share capital and change its corporate name and otherwise vary the provisions of the Special Act relating to the operation and management of the company, the holding of its shares, and the carrying on of its undertaking, if the applicant company has concurred therein.

Marginal note:Inter-insurance contracts

• 5.5 (1) Nothing in this Part shall be construed to prevent the company from exchanging with any other companies or persons reciprocal contracts of indemnity against loss by fire or otherwise, under the plan known as inter-insurance.

• Marginal note:No power to issue paper money for banking

  (2) Nothing in this Part shall be construed to authorize the company to issue any promissory note intended to be circulated as money or as the note of a bank or to engage in the business of banking or insurance.

Marginal note:Grounds for winding-up company

• 5.6 (1) Where a company

  • (a) carries on a business that is not within the scope of the objects set forth in its letters patent or supplementary letters patent,

  • (b) exercises or professes to exercise any powers that are not truly ancillary or reasonably incidental to the objects set forth in its letters patent or supplementary letters patent,

  • (c) exercises or professes to exercise any powers expressly excluded by its letters patent or supplementary letters patent,

  the company is liable to be wound up and dissolved under the Winding-up Act upon the application of the Attorney General of Canada to a court of competent jurisdiction for an order that the company be wound up under the Act, which application may be made upon receipt by the Attorney General of Canada of a certificate of the Minister setting forth his opinion that any of the circumstances described in paragraphs (a) to (c) apply to that company.

• Marginal note:Costs of winding-up

  (2) In any application to the court under subsection (1) the court shall determine whether the costs of the winding-up shall be borne by the company or personally by any or all of the directors of the company who participated or acquiesced in the carrying on of any business or the exercise or the professing of the exercise of any powers described in subsection (1).

Marginal note:Application of section 20

5.7 Subsection 20(1) does not apply

• (a) to a company incorporated under section 5.1, 5.2 or 5.3, so as to enable it to extend its objects to further or other objects without the concurrence of the Minister whose concurrence would be required under section 5.1, 5.2 or 5.3, as the case may be, or

• (b) to any other company to which this Part applies so as to enable it to extend its objects to objects for which a company may be incorporated under section 5.1, 5.2 or 5.3.

Marginal note:Seal of office

6 The Governor in Council may, from time to time, designate the seal of office to be used by the Minister as the seal under which letters patent may be granted under this Act.

Marginal note:Qualification of applicants

• 7 (1) The applicants for letters patent shall be individuals of the full age of eighteen years with power under law to contract.

• Marginal note:Particulars in application

  (2) The applicants for letters patent shall file in the Department an application signed by each of the applicants setting forth the following particulars:

  • (a) the name, the place of residence and the calling of each of the applicants;

  • (b) the proposed corporate name of the company, having regard to section 25;

  • (c) the objects for which incorporation is sought, which shall be limited to the objects that it is intended the company shall pursue;

  • (d) the place within Canada where the head office of the company is to be situated;

  • (e) the authorized capital, the classes, if any, of the shares into which it is to be divided and the number of shares of each class;

  • (f) where the shares of a class are to be with par value, the par value of each share;

  • (g) where the shares of a class are to be without par value, the maximum consideration for which each share or the maximum aggregate consideration for which all shares of the class may be issued;

  • (h) where part of the shares are to be with par value and part without par value, particulars thereof in accordance with paragraphs (f) and (g);

  • (i) where there are to be two or more classes of shares, the preferences, rights, conditions, restrictions, limitations or prohibitions, if any, attaching to each class of shares; and if any class of shares that is to have attached thereto preferred rights as to dividend is to be issued in series as provided by subsection 13(3), either

    • (i) the designation, rights, restrictions, conditions and limitations attaching to the first series of such class, and a statement that the directors are authorized to fix from time to time before issuance the designation, rights, restrictions, conditions and limitations attaching to the shares of each subsequent series of such class, or

    • (ii) a statement that the directors are authorized to fix from time to time before issuance the designation, rights, restrictions, conditions and limitations attaching to the shares of each series of such class;

  • (j) a statement whether the company is to be a public company or a private company and, if the company is to be a private company, a request that the company be incorporated as a private company and the restrictions on the transfer of its shares that are to be set out in the letters patent;

  • (k) the name, postal address and calling of each of the applicants, not less than three who are to be the first directors of the company; and

  • (l) the class and number of shares to be taken by each applicant and the amount to be paid therefor.

• Marginal note:Additional matter

  (3) The applicants may ask to have embodied in the letters patent any provision that could under this Part be contained in any by-law of the company.

• Marginal note:Specific powers

  (4) The application need not specify the powers to be acquired by the company unless

  • (a) a specific power is sought that is not included within the ancillary or incidental powers to be acquired by the company pursuant to section 16; or

  • (b) an ancillary or incidental power mentioned in section 16 is to be excluded from the powers of the company or is to be qualified in respect of the company.

Marginal note:Original shareholders

8 Upon the incorporation of a company each applicant for letters patent becomes a shareholder holding the class and number of shares stated in the application to be taken by him and he is liable to the company for the amount to be paid therefor.

Marginal note:Establishing conditions precedent to the issue of letters patent

• 9 (1) Before the letters patent are issued the applicants shall establish to the satisfaction of the Minister

  • (a) the sufficiency of the application and the truth and sufficiency of the facts therein set forth, and

  • (b) that the proposed name is not the same or similar to the name under which any other company, society, association or firm, in existence, is carrying on business in Canada or is incorporated under the laws of Canada or any province thereof or so nearly resembles the same as to be calculated to deceive and is not otherwise on public grounds objectionable, or that such existing company, society, association or firm is in the course of being dissolved or changing its name and has signified its consent to the use of the said name.

• Marginal note:Evidence may be taken

  (2) The Minister or any officer to whom the application may be referred may take any requisite evidence in writing by oath or affirmation or by statutory declaration and the Minister shall keep of record any such evidence so taken.

• Marginal note:Averments to be recited

  (3) The letters patent shall recite such of the established averments in the application as to the Minister seems expedient.

• Marginal note:Name of company

  (4) The Minister, after giving reasonable notice to the applicants, or to their authorized representative or agent, may give to the company a corporate name different from that proposed by the applicants in any case in which the proposed name is deemed by the Minister to be objectionable.

• Marginal note:Alterations in application for letters patent

  (5) The Minister after giving notice to the applicants or to their authorized representative or agent may, with the consent of such applicants or their authorized representative or agent, make such alterations in the application as may be deemed expedient by the Minister.

Marginal note:Notice to be published

10 Notice of the granting of letters patent or supplementary letters patent shall be forthwith given by the Minister by one insertion in the Canada Gazette.

Marginal note:Corrections

• 11 (1) When the letters patent or supplementary letters patent contain any misnomer, misdescription, clerical error or other defect, the Minister may direct the letters patent or supplementary letters patent to be corrected.

• Marginal note:Notice of correction

  (2) Notice of the correction of the letters patent or supplementary letters patent shall be forthwith given by the Minister in the Canada Gazette if the correction made causes them to depart materially from the text of the original notice given pursuant to section 10.

Marginal note:Date of existence

12 A company comes into existence on the date of the letters patent incorporating it.

Marginal note:Different classes of shares

• 13 (1) The letters patent or supplementary letters patent of a company may provide for shares of more than one class and for any preferred, deferred or other special rights, restrictions, conditions or limitations attaching to any class of shares.

• Marginal note:Issuance of shares preferred as to dividends

  (2) The letters patent or supplementary letters patent may provide for the issuing of preferred shares with par value subject to redemption or purchase for cancellation out of capital if the price at which such redemption or purchase for cancellation takes place is not more than the par value of the shares plus a premium of not more than twenty per cent of such par value; but no such redemption or purchase for cancellation shall take place where the company is insolvent or when such redemption or purchase for cancellation would render the company insolvent.

• Marginal note:Issuance in series

  (3) If any class of shares has attached thereto preferred rights as to dividends, the letters patent or supplementary letters patent may authorize the issuance, from time to time, in one or more series, of the shares of any such class, and may authorize the directors to fix, from time to time before issuance, the designation, rights, restrictions, conditions and limitations attaching to the shares of each series of such class.

• Marginal note:Voting rights and dividends

  (4) The shares of all series of the same class carrying voting rights shall not carry the right to more than one vote for each share, and when any fixed cumulative dividends or amounts payable on a return of capital are not paid in full, the shares of all series of the same class shall participate rateably in respect of such dividends including accumulations, if any, in accordance with the sums that would be payable on the said shares if all such dividends were declared and paid in full, and on any return of capital in accordance with the sums that would be payable on such return of capital if all sums so payable were paid in full.

• Marginal note:When series to be issued

  (5) No shares of any series of such class shall be issued until supplementary letters patent have been issued setting forth the designation, rights, restrictions, conditions and limitations attaching to the shares of such series except in the case of any such series in respect of which such designation, rights, restrictions, conditions and limitations have been set forth in the letters patent or previous supplementary letters patent.

• Marginal note:Issue of supplementary letters patent

  (6) The Minister may cause such supplementary letters patent to be issued on the application of the company and the filing with the Minister of a certified copy of a resolution of the directors of the company fixing the designation, rights, restrictions, conditions and limitations attaching to the shares of such series and evidence of due compliance with the conditions (if any) contained in the letters patent or any previous supplementary letters patent precedent to the creation and issuance of the shares of such series; notice of the issuance of such supplementary letters patent shall be given in the Canada Gazette.

• Marginal note:Capital to be total nominal amount

  (7) The authorized capital of a company having shares with a nominal or par value shall, with respect to those shares, be the total nominal amount of those shares.

• Marginal note:Shares without par value

  (8) All or any part of the authorized capital of a company, except shares having priority as to capital or being subject to redemption or purchase for cancellation, may consist of shares without nominal or par value.

• Marginal note:Capital where shares have no par value

  (9) Where the authorized capital of a company consists, in whole or in part, of shares without nominal or par value, the paid up capital of the company shall, with respect to those shares, be an amount equal to the aggregate amount of the consideration received by the company for such of the shares as are issued, exclusive of such part of such consideration as may have been lawfully set aside as distributable surplus before the 1st day of July 1965.

• Marginal note:Equality of shares

  (10) Each share of the capital stock without nominal or par value shall be equal to every other such share of the capital stock subject to the preferred, deferred or other special rights or restrictions, conditions or limitations attached to any class of shares.

• Marginal note:Particulars to be endorsed on certificate

  (11) Every certificate of shares without nominal or par value shall have plainly written or printed upon its face the number of such shares that it represents and the number of such shares that the company is authorized to issue, and no such certificate shall express any nominal or par value of such shares.

• Marginal note:Shares to be allotted for consideration fixed by directors

  (12) In the absence of other provisions in that behalf in the letters patent, supplementary letters patent or by-laws of the company, shares without nominal or par value may be allotted, and issued for such consideration as may be fixed by the directors acting in good faith and in the best interests of the company.

• Marginal note:Consideration for shares without nominal or par value

  (13) Shares without nominal or par value shall not be allotted as fully paid except for

  • (a) the consideration fixed by the directors as provided in this section payable in cash to the total amount of the consideration; or

  • (b) a consideration payable directly or indirectly in property or past services that the directors in good faith determine by express resolution to be in all the circumstances of the transaction the fair equivalent of the cash consideration mentioned in paragraph (a).

• Marginal note:Shares to be deemed fully paid

  (14) Any and all shares issued as permitted by this section shall be deemed fully paid and non-assessable on receipt by the company of the consideration for the issue and allotment thereof, and the holder of such shares is not liable to the company or to its creditors in respect thereof.

• Marginal note:Consideration for shares with nominal or par value

  (15) Shares having a nominal or par value shall not be issued as fully paid except for

  • (a) a consideration payable in cash at least equal to the product of the number of shares allotted and issued multiplied by the nominal or par value thereof; or

  • (b) a consideration payable directly or indirectly in property or past services that the directors in good faith determine by express resolution to be in all the circumstances of the transaction the fair equivalent of the cash consideration mentioned in paragraph (a).

• Marginal note:Determination of consideration

  (16) The directors may applyex parte by summary petition to a judge to determine by declaratory order that the consideration so payable in property or services is the fair equivalent as required under paragraph (15)(b), and the judge may so determine and for that purpose he may require the production of such proofs, oral and documentary, under oath or otherwise, as he may think fit; and his order is final and conclusive proof in all courts that the consideration so payable was the fair equivalent as required under that paragraph.

• Marginal note:Shares with exclusive right of control

  (17) In no case shall shares of a company of any class, whether with or without par value, be issued or allotted with voting rights limited in such a way as to attach to any other class or classes of shares the exclusive right to control the management of the company by the election or removal of the board of directors or otherwise.

• Marginal note:Preferred shares with preferential voting rights

  (18) Nothing in subsection (17) prevents the issue, under authority of provision therefor by letters patent or supplementary letters patent, of any preferred shares to which are attached preferential voting rights, exercisable in a stated event only, although, in the stated event, an exclusive right to control or manage is attached to or is incident to such preferred shares.

Marginal note:“Mutual fund shares”

• 14 (1) In this section “mutual funds shares” means any class of shares having conditions attached thereto that include conditions requiring the company issuing the shares to accept, at the demand of the holder thereof and at prices determined and payable in accordance with the conditions, the surrender of the shares, or fractions or parts thereof, that are fully paid.

• Marginal note:Issuing of mutual fund shares

  (2) Where the only undertaking of a company is the business of investing the funds of the company, its letters patent or supplementary letters patent may provide for the issuing of one or more classes of mutual fund shares, in which case the letters patent or supplementary letters patent shall set out the conditions governing

  • (a) the surrender of fully paid mutual fund shares or any fractions or parts thereof that are fully paid; and

  • (b) the determination of the price to be paid therefor and the manner and time of payment thereof.

• Marginal note:Effect of surrender

  (3) Any mutual fund shares or fractions or parts thereof surrendered to the company pursuant to the conditions attached to such shares shall be deemed to be no longer outstanding and shall not be reissued by the company.

• Marginal note:Additional conditions

  (4) There may be included in the conditions attached to mutual fund shares

  • (a) a condition providing for a participating interest in any fund administered by the company; and

  • (b) a condition that, upon the surrender of any fully paid mutual fund shares, or any fractions or parts thereof that are fully paid, the price to be paid therefor may be paid out of capital.

• Marginal note:Relating redemption or cancellation provisions to mutual fund shares

  (5) Where in any letters patent or supplementary letters patent the expression “redemption or purchase for cancellation”, or an expression of like import, is used in relation to any shares of a company, the expression shall, in relation to mutual fund shares of the company, be deemed to be a reference to acceptance by the company of the surrender of those shares.

General Powers and Duties of Companies

Marginal note:Powers given subject to this Act

15 All powers given to a company by letters patent or supplementary letters patent shall be exercised subject to the provisions and restrictions contained in this Part.

Marginal note:Incidental and ancillary powers

• 16 (1) A company may, as ancillary and incidental to the objects set out in its letters patent or supplementary letters patent, exercise any or all of the following powers, namely the power:

  • (a) to carry on any other business that may seem to the company capable of being conveniently carried on in connection with its business or calculated directly or indirectly to enhance the value of or render profitable any of the company’s property or rights;

  • (a.1) to purchase or otherwise acquire and undertake all or any of the assets, business, property, privileges, contracts, rights, obligations and liabilities of any other company or any society, firm or person carrying on any business that the company is authorized to carry on, or possessed of property suitable for the purposes of the company;

  • (b) to apply for, purchase or otherwise acquire any patents, patent rights, copyrights, trade marks, formulae, licences, concessions and the like, conferring any exclusive or non-exclusive or limited right to use, or any secret or other information as to any invention that may seem capable of being used for any of the purposes of the company, or the acquisition of which may seem calculated directly or indirectly to benefit the company, and to use, exercise, develop or grant licenses in respect of, or otherwise turn to account, the property, rights or information so acquired;

  • (b.1) to amalgamate or enter into partnership or into any arrangement for sharing of profits, union of interests, cooperation, joint adventure, reciprocal concession or otherwise, with any other company or any society, firm or person, carrying on or engaged in or about to carry on or engage in any business or transaction that the company is authorized to carry on or engage in, or any business or transaction capable of being conducted so as directly or indirectly to benefit the company; and to lend money to, guarantee the contracts of, or otherwise assist any such company, society, firm or person, and to take or otherwise acquire shares and securities of any such company, and to sell, hold or otherwise deal with the same;

  • (c) to take, or otherwise acquire and hold, shares, debentures or other securities of any other company having objects altogether or in part similar to those of the company, or carrying on any business capable of being conducted so as, directly or indirectly, to benefit the company, and to sell or otherwise deal with the same;

  • (d) to enter into any arrangements with any government or authority, municipal, local or otherwise, that may seem conducive to the company’s objects, or any of them, and to obtain from any such government or authority any rights, privileges and concessions that the company may think it desirable to obtain, and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions;

  • (e) to establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit employees or ex-employees of the company or of its predecessors in business, or the dependants or connections of such persons, and to grant pensions and allowances, and to make payments toward insurance, and to subscribe or guarantee money for charitable or benevolent objects, or for any exhibition or for any public, general or useful object;

  • (f) to promote any other company or companies for the purpose of acquiring or taking over all or any of the property and liabilities of the company, or for any other purpose that may seem directly or indirectly calculated to benefit the company;

  • (g) to purchase, take on lease or in exchange, hire, and otherwise acquire and hold, sell or otherwise deal with any real and personal property and any rights or privileges that the company may think necessary or convenient for the purposes of its business and in particular any land, buildings, easements, machinery, plant and stock-in-trade;

  • (h) to construct, improve, maintain, work, manage, carry out or control any roads, ways, branches or sidings, bridges, reservoirs, watercourses, wharfs, manufactories, warehouses, electric works, shops, stores and other works and conveniences that may seem calculated directly or indirectly to advance the company’s interests, and to contribute to, subsidize or otherwise assist or take part in the construction, improvement, maintenance, working, management, carrying out or control thereof;

  • (i) to lend money to any other company, or any society, firm or person, having dealings with the company or with whom the company proposes to have dealings or to any other company any of whose shares are held by the company;

  • (j) to draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants and other negotiable or transferable instruments;

  • (k) to sell or dispose of the undertaking of the company or any part thereof for such consideration as the company may think fit, and in particular for shares, debentures or securities of any other company that has objects altogether or in part similar to those of the company;

  • (l) to apply for, secure, acquire by grant, legislative enactment, assignment, transfer, purchase or otherwise, and to exercise, carry out and enjoy any charter, licence, power, authority, franchise, concession, right or privilege, that any government or authority or any corporation or other public body may be empowered to grant, and to pay for, aid in and contribute toward carrying the same into effect, and to appropriate any of the company’s shares, debentures, or other securities and assets to defray the necessary costs, charges and expenses thereof;

  • (m) to procure the company to be registered and recognized in any foreign country or place, and to designate persons therein according to the laws of such foreign country or place to represent the company and to accept service for and on behalf of the company of any process or suit;

  • (n) to remunerate any other company, or any society, firm or person for services rendered, or to be rendered, in placing or assisting to place or guaranteeing the placing of any of the shares in the company’s capital or any debentures or other securities of the company, or in or about the organization, formation or promotion of the company or the conduct of its business;

  • (o) to raise and assist in raising money for, and to aid by way of bonus, loan, promise, endorsement, guarantee or otherwise, any other company with which the company may have business relations or any of whose shares, debentures or other obligations are held by the company and to guarantee the performance or fulfilment of any contracts or obligations of any such company or of any person with whom the company may have business relations, and in particular to guarantee the payment of the principal of and interest on debentures or other securities, mortgages and liabilities of any such company;

  • (p) to adopt such means of making known the products of the company as may seem expedient, and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations;

  • (q) to sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with all or any part of the property and rights of the company;

  • (r) to issue and allot fully or partly paid up shares of the capital stock of the company in payment or part payment of any real or personal property purchased or otherwise acquired by the company or any services rendered to the company;

  • (s) to distribute among the shareholders of the company in kind, specie or otherwise, any property or assets of the company including any proceeds of the sale or disposal of any property of the company and in particular any shares, debentures, or other securities of or in any other company belonging to the company, or of which it may have power to dispose, if either such distribution is made for the purpose of enabling the company to surrender its charter under the provisions of this Act, or such distribution, apart from the provisions of this paragraph, would have been lawful if made in cash;

  • (t) to pay out of the funds of the company all or any of the expenses of or incidental to the formation and organization thereof, or which the company may consider to be preliminary;

  • (u) to establish agencies and branches;

  • (v) to invest and deal with the moneys of the company not immediately required in such manner as may from time to time be determined;

  • (w) to apply for, promote and obtain any statute, ordinance, order, regulation or other authorization or enactment that may seem calculated directly or indirectly to benefit the company; and to oppose any proceedings or application that may seem calculated directly or indirectly to prejudice the company’s interests;

  • (x) to take or hold mortgages, hypothecs, liens and charges to secure payment of the purchase price, or for any unpaid balance of the purchase price of any part of the company’s property of whatsoever kind sold by the company, or any money due to the company from purchasers and others and to sell or otherwise dispose of said mortgages, hypothecs, liens and charges;

  • (y) to carry out all or any of the objects of the company and do all or any of the things set out in this subsection as principal, agent, contractor, or otherwise, and either alone or in conjunction with others; and

  • (z) to do all such other things as are incidental or conducive to the attainment of the objects and the exercise of the powers of the company.

• Marginal note:Property and rights

  (2) The company shall from the date of its letters patent become and be vested with all property and rights, real and personal, theretofore held for it under any trust created with a view to its incorporation.

• Marginal note:Other powers

  (3) Nothing in this section prevents the inclusion in the letters patent or supplementary letters patent of a company of other powers in addition to or in modification of the powers mentioned in subsection (1).

• Marginal note:Withholding or limiting powers

  (4) Any of the powers set out in subsection (1) may be withheld or limited by the letters patent or supplementary letters patent of the company.

Marginal note:Financial assistance to shareholders or directors

• 17 (1) A company shall not make any loan to any of its shareholders or directors or give whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of, or in connection with, a purchase made or to be made by any person of any shares in the company.

• Marginal note:Exceptions

  (2) Nothing in this section shall be taken to prohibit

  • (a) the lending of money by the company in the ordinary course of its business where the lending of money is part of the ordinary business of the company;

  • (b) the making by a company of loans to persons, other than directors,bona fide in the employment of the company with a view to enabling or assisting those persons to purchase or erect dwelling-houses for their own occupation; and the company may take, from such employees, mortgages or other securities for the repayment of such loans;

  • (c) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase by trustees of fully paid shares in the capital stock of the company, to be held by, or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;

  • (d) the making by a company of loans to persons, other than directors,bona fide in the employment of the company, with a view to enabling those persons to purchase fully paid shares in the capital stock of the company, to be held by themselves by way of beneficial ownership; or

  • (e) the making by a private company of a loan to a shareholder or director, with a view to enabling him to purchase shares in the capital stock of the company held by an existing shareholder or by a person entitled thereto by reason of the death or bankruptcy of a shareholder.

• Marginal note:Powers exercised by by-law

  (3) The powers under paragraphs (2)(c), (d) and (e) shall be exercised by by-law only.

• Marginal note:Loan by company liability

  (4) Where any loan is made by the company in violation of this section, all directors and officers of the company making the loan or assenting thereto, are, until repayment of the loan, jointly and severally liable to the company and to its creditors for the debts of the company then existing or thereafter contracted, but such liability shall be limited to the amount of the loan with interest.

Marginal note:Commission on subscriptions

• 18 (1) A company may pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the capital stock of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such shares if

  • (a) the payment of the commission is authorized by the letters patent or supplementary letters patent,

  • (b) the commission paid or agreed to be paid does not exceed the amount or rate so authorized, and

  • (c) the amount or rate per cent of the commission paid or agreed to be paid is disclosed in the prospectus in the case of shares offered to the public for subscription.

• Marginal note:Limitation regarding payment of commissions

  (2) Except as provided by subsection (1), no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount, or allowance, to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the capital stock of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such shares, whether the shares or money are so applied by being added to the purchase money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money is paid out of the nominal purchase money or contract price, or otherwise.

• Marginal note:Payment of brokerage

  (3) Nothing in this section affects the power of any company to pay such brokerage as it has heretofore been lawful for a company to pay, and a vendor to, promoter of, or other person who receives payment in money or shares from a company, has, and shall be deemed always to have had, power to apply any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been legal under this section.

Marginal note:“Holding company”, “subsidiary company”

• 19 (1) In this section “holding company” and “subsidiary company” have the meanings assigned those expressions by section 125.

• Marginal note:Shares of holding company

  (2) Except as provided in this section, a company shall not hold shares in a company that is its holding company, and any allotment or transfer of shares of a company to its subsidiary company is void.

• Marginal note:Holding shares as personal representative

  (3) Subsection (2) does not apply to a subsidiary company holding shares in the capacity of a personal representative unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not beneficially interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business that includes the lending of money.

• Marginal note:Holding shares on commencement of section

  (4) A subsidiary company that on the 1st day of July 1965 or on the date on which it became a subsidiary held shares of its holding company may continue to hold those shares notwithstanding subsection (2); but subject to subsection (3), the subsidiary company may not vote at meetings of shareholders of the holding company or at meetings of any class of shareholders thereof.

• Marginal note:Nominee of subsidiary company

  (5) Subject to subsection (3), subsections (2) and (4) apply in relation to a nominee for a company that is a subsidiary as if the references in subsections (2) and (4) to such a company included references to a nominee for it.

Change of Provisions of Letters Patent

Marginal note:Application to extend or reduce powers

• 20 (1) Subject to any special rights attaching to shares of any class or classes as set forth in the letters patent or supplementary letters patent, a company may from time to time, when authorized by by-law sanctioned by two-thirds of the votes cast at a special general meeting of shareholders called for the purpose, apply for supplementary letters patent, as provided in such by-law,

  • (a) extending the objects of the company to such further or other objects for which a company may be incorporated under this Part, or

  • (b) reducing, limiting, amending or varying the objects or the powers of the company or any of the provisions of the letters patent or supplementary letters patent issued to the company;

  but no such extension, reduction, limitation, amendment or variation may have the effect of altering or permitting the alteration of the authorized capital of the company in any manner other than pursuant to the issue of supplementary letters patent under sections 51 to 60 or section 134, as the circumstances of the case may require.

• Marginal note:Converting company

  (2) A company may, when authorized by by-law sanctioned by three-fourths of the votes cast at a special general meeting of shareholders called for the purpose, apply for supplementary letters patent converting the company from a private company into a public company, or from a public company into a private company, as the case may be.

• Marginal note:Limitation

  (3) An application under subsection (1) or (2) may be made only within six months after the by-law therein mentioned has been sanctioned by the shareholders.

• Marginal note:Evidence of by-law

  (4) Before such supplementary letters patent are issued, the company shall establish to the satisfaction of the Minister the due passage and sanction of the by-law authorizing the application, and for that purpose the Minister may take any requisite evidence in writing, by oath or affirmation, or by statutory declaration and shall keep a record of any such evidence so taken.

• Marginal note:Supplementary letters patent

  (5) Upon the due sanctioning of a by-law pursuant to subsection (1) or (2), as the case may be, being so established, the Minister may grant supplementary letters patent

  • (a) extending the objects of the company;

  • (b) reducing, limiting, amending or varying the objects or the powers of the company or any of the provisions of the letters patent or supplementary letters patent of the company; or

  • (c) converting the company into a public or private company,

  as the case may be, and as provided in such by-law; and notice thereof shall be forthwith given by the Minister in the Canada Gazette and the supplementary letters patent take effect from their date.

Contracts, etc.

Marginal note:Contracts of agent binding on company

• 21 (1) Every contract, agreement, engagement or bargain made, and every bill of exchange drawn, accepted or endorsed, and every promissory note and cheque made, drawn or endorsed on behalf of the company, by any agent, officer or servant of the company within the apparent scope of his authority as such agent, officer or servant, is binding upon the company.

• Marginal note:Cases where seal not necessary

  (2) In no case is it necessary to have the seal of the company affixed to any such contract, agreement, engagement, bargain, bill of exchange, promissory note or cheque, or to prove that the same was made, drawn, accepted or endorsed, as the case may be, in pursuance of any by-law or special vote or order.

• Marginal note:No individual liability

  (3) No person so acting as such agent, officer or servant of the company is thereby subjected individually to any liability whatever to any third person.

Marginal note:Acts of attorney binding

22 Every deed that any person, lawfully empowered in that behalf by the company as its attorney, signs on behalf of the company and seals with his seal is binding on the company and has the same effect as if it were under the seal of the company.

Marginal note:Official seal, facsimile of corporate seal

• 23 (1) A company if authorized by its by-laws may have for use in any province, not being the province in which the head office of the company is situated, or for use in any territory, district or place outside Canada, an official seal, which shall be a facsimile of the corporate seal, with the addition on its face of the name of the province, territory, district or place where it is to be used.

• Marginal note:Authorization to affix seal

  (2) A company having such an official seal may by writing under its corporate seal authorize any person appointed for the purpose to affix the same to any deed or other document to which the company is party in any capacity in such province, territory, district or place.

• Marginal note:Agent’s authority

  (3) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is therein mentioned, then until notice of the revocation or determination of the agent’s authority has been given to the person dealing with him.

• Marginal note:Date and place certified

  (4) The person affixing any such official seal shall, by writing under his hand, on the deed or other document to which the official seal is affixed, certify the date and place of affixing the same, but failure to do so does not invalidate the deed or other document.

• Marginal note:Deed to bind the company

  (5) A deed or other document to which an official seal is duly affixed binds the company as if it had been sealed with the corporate seal.

Head Office

Marginal note:Head office

• 24 (1) The company shall at all times have a head office in the place within Canada where the head office is to be situated in accordance with the letters patent or the provisions of this Part, which head office is the domicile of the company in Canada; and the company may establish such other offices and agencies elsewhere within or outside Canada, as it deems expedient.

• Marginal note:Change of head office by by-law

  (2) The company may, by by-law, change the place where the head office of the company is to be situated.

• Marginal note:Change to be sanctioned

  (3) No by-law for the purpose of changing the place where the head office is to be situated is valid or shall be acted upon until it is sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders duly called for considering the by-law.

• Marginal note:Filing by-law

  (4) A copy of the by-law certified under the seal of the company shall be forthwith filed with the Minister and shall be available for inspection at the office thereof during normal business hours.

• Marginal note:Notice of by-law

  (5) A notice of the by-law shall be forthwith published in the Canada Gazette.

Name of Company

Marginal note:Name of company

• 25 (1) The word “Limited” or the abbreviation “Ltd” shall be the last word of the name of each company, but in either case the company may use, and be legally designated by, “Limited” or “Ltd”, and reference thereto may be made in the same manner.

• Marginal note:Use of French or English form of name

  (2) If the company has a name consisting of a separated or combined French and English form, it may from time to time use, and it may be legally designated by, either the French or English form of its name or both forms.

• Marginal note:Publishing name of company

  (3) A company shall

  • (a) keep its name painted or affixed, in letters easily legible, in a conspicuous position on the outside of every office or place in which the business of the company is carried on;

  • (b) keep its name engraved in legible characters on its seal and, if the company has a name consisting of a French and English form, whether separated or combined, the company shall show on its seal both the French and English forms of its name or shall have two seals, each of which shall be equally valid, one showing the French and the other the English form of its name; and

  • (c) have its name, in legible characters, mentioned in all notices, advertisements and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices and receipts of the company.

Marginal note:Neglect to keep name painted or affixed

26 Every company that does not keep its name painted or affixed in the manner directed by this Part shall incur a penalty of twenty dollars for every day during which such name is not so kept painted or affixed, and every director and manager of the company, who knowingly and wilfully authorizes or permits such default, is liable to the like penalty.

Marginal note:Authorizing seal where name not engraven properly

27 Every director, manager or officer of a company, and every person on its behalf, who

• (a) uses or authorizes the use of any seal purporting to be a seal of the company, whereon its name is not engraven in legible characters,

• (b) issues or authorizes the issue of any notice, advertisement, or other official publication of such company,

• (c) signs or authorizes to be signed on behalf of the company, any bill of exchange, promissory note, endorsement, cheque, order for money or goods, or

• (d) issues or authorizes to be issued any bill of parcels, invoice or receipt of the company,

wherein its name is not mentioned in legible characters, is liable to a penalty of two hundred dollars, and is also personally liable to the holder of any such bill of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless the same is duly paid by the company.

Marginal note:Not to have identical name

• 28 (1) A company shall not be incorporated

  • (a) with a name that is the same or similar to the name under which any other company, society, association or firm, in existence, is carrying on business in Canada or is incorporated under the laws of Canada or any province thereof, or that so nearly resembles that name as to be calculated to deceive, except where the existing company, society, association or firm is in the course of being dissolved or of changing its name and signifies its consent in such manner as the Minister requires, or

  • (b) with a name that is otherwise on public grounds objectionable.

• Marginal note:Minister may change name by supplementary letters

  (2) Where a company, through inadvertence or otherwise, is without the consent mentioned in subsection (1) incorporated with a name that is the same or similar to the name under which any other company, society, association or firm in existence has been previously carrying on business in Canada or has been previously incorporated under the laws of Canada or any province thereof, or with a name that so nearly resembles that name as to be calculated to deceive, or that is otherwise on public grounds objectionable, the Minister, after he has given notice to the company of intention so to do, may direct the issue of supplementary letters patent changing the name of the company to some other name, which shall be set forth in the supplementary letters patent.

• Marginal note:Notice

  (3) Notice of the issue of such supplementary letters patent shall be published in the Canada Gazette.

Marginal note:Company may obtain change in name

• 29 (1) When a company desires to adopt another name it may, subject to confirmation by supplementary letters patent, change its corporate name by by-law sanctioned by at least two-thirds of the votes cast at a special general meeting of shareholders called for the purpose.

• Marginal note:Supplementary letters patent

  (2) The Minister, upon application of the company and upon being satisfied that the change desired is not objectionable, may direct the issue of supplementary letters patent, changing the name of the company to some other name which shall be set forth in the supplementary letters patent.

• Marginal note:Notice

  (3) Notice of the issue of such supplementary letters patent shall be published in the Canada Gazette.

Marginal note:Change not to affect rights or obligations

30 No alteration of name under sections 28 and 29 affects the rights or obligations of the company; and all proceedings may be continued or commenced by or against the company under its new name that might have been continued or commenced by or against the company under its former name.

Forfeiture of Charter

Marginal note:Forfeiture of charter for non-user

• 31 (1) Where a company does not go into actual bona fide operation within three years after incorporation or for three consecutive years does not use its corporate powers its charter shall be and become forfeited.

• Marginal note:Proof of user

  (2) In any action or proceeding where such non-user is alleged, proof of user lies upon the company.

• Marginal note:Revival of charter

  (3) The Minister may upon application of any person interested revive any charter so forfeited upon compliance with such conditions as he may prescribes.

Surrender of Charter

Marginal note:Surrender of charter

• 32 (1) The charter of a company may be surrendered if the company proves to the satisfaction of the Minister

  • (a) that the company has no assets and that, if it had any assets immediately prior to the application for leave to surrender its charter, such assets have been divided rateably among its shareholders or members, and either,

    • (i) that it has no debts, liabilities or other obligations, or

    • (ii) that the debts, liabilities or other obligations of the company have been duly provided for or protected or that the creditors of the company or other persons having interests in such debts, liabilities or other obligations consent; and

  • (b) that the company has given notice of the application for leave to surrender by publishing the same once in the Canada Gazette and once in a newspaper published at or as near as may be to the place where the company has its head office.

• Marginal note:Application by inoperative company

  (2) Where an application to surrender a charter is made by a company that has not gone into bona fide operation or that has been inoperative for three or more consecutive years, if the circumstances mentioned in paragraph (1)(a) are proved to the satisfaction of the Minister, the Minister shall publish a notice of such application in the Canada Gazette and, unless an objection to the surrender is received by him within one year after such publication of the notice, he may accept the application for the surrender of the charter.

• Marginal note:Acceptance of surrender

  (3) Where the Minister has accepted the surrender of a charter upon due compliance with subsection (1) or subsection (2), as the case may be, the Minister may direct the cancellation of the charter of the company and fix a date upon and from which the company shall be dissolved, and the company is thereby and thereupon dissolved accordingly.

• Marginal note:No fee payable by inoperative company

  (4) No fee shall be charged in respect of a surrender under this section of the charter of a company described in subsection (2).

Marginal note:Liability of shareholders after dissolution of company

33 Notwithstanding the dissolution of a company under section 32, the shareholders of the company among whom its assets have been divided remain, to the amount received by them respectively upon such division, jointly and severally liable to the creditors of the company; and an action may be brought in any court of competent jurisdiction to enforce such liability, but the action shall be commenced within and not after one year from the date of such dissolution of the company.

Shares

Marginal note:Shares are personal estate

34 A share in the capital stock of a company is personal estate and is transferable in such manner and subject to such conditions and restrictions as are prescribed by this Part, the letters patent or supplementary letters patent, or by-laws of the company.

Marginal note:Allotment of shares

35 In the absence of any provisions to the contrary in the letters patent or supplementary letters patent or by-laws of a company, shares in the capital stock of the company, including any shares created by supplementary letters patent increasing the capital stock of the company, may be allotted at such times and in such manner and to such persons or class of persons as the directors may from time to time by resolution determine.

Marginal note:Share certificates

• 36 (1) Every shareholder is, without payment, entitled to a certificate signed by the proper officer, in accordance with the company’s by-laws in that behalf, stating the number of shares held by him and the amount paid up thereon, but, in respect of a share or shares held jointly by several persons, the company is not bound to issue more than one certificate, and delivery of a certificate for a share to one of several joint shareholders is sufficient delivery to all.

• Marginal note:Signatures

  (2) A company may by by-law provide that the signatures of the officer or officers designated to sign certificates may be engraved, lithographed or otherwise mechanically reproduced upon certificates for shares, and in such event, subject to the provisions of such by-law, certificates so signed shall be deemed to have been manually signed by such officers and are as valid to all intents and purposes as if they had been manually signed.

• Marginal note:Certificate as evidence of title

  (3) The certificate is evidence of the title of the shareholder to the shares mentioned in it.

• Marginal note:Particulars of issue on certificate

  (4) Where a company has more than one class of shares

  • (a) the preferences, rights, conditions, restrictions, limitations or prohibitions attaching to any class of shares shall be stated in legible characters

    • (i) on every share certificate representing that class of shares, or

    • (ii) by a writing permanently attached to the share certificate;

  or

  • (b) there shall be inscribed on each such share certificate, in legible characters, a statement that there are preferences, rights, conditions, restrictions, limitations or prohibitions attached to such class of shares, and that the full text thereof is obtainable on demand, and without fee, from the secretary of the company.

• Marginal note:Furnishing text of particulars

  (5) Where a statement referred to in paragraph (4)(b) is inscribed on the share certificate, the secretary of the company shall furnish, without fee, to the shareholder on demand the full text of any preferences, rights, conditions, restrictions, limitations or prohibitions attached to such class of shares.

Marginal note:Execution of trusts

• 37 (1) A company is not bound to see to the execution of any trust, whether express, implied or constructive, in respect of any share of the company.

• Marginal note:Receipt of shareholder as a discharge

  (2) The receipt of the shareholder in whose name the share stands in the books of the company is a valid and binding discharge to the company for any dividend or money payable in respect of such share whether notice of such trust has been given to the company or not.

• Marginal note:Application of money

  (3) The company is not bound to see to the application of the money paid upon such receipt.

Marginal note:Issue and effect of share warrants

• 38 (1) A public company, if so authorized by its letters patent or supplementary letters patent and subject to the provisions respecting share warrants therein contained, may, with respect to any fully paid-up shares, issue under the seal of the company a warrant stating that the bearer of the warrant is entitled to the share or shares therein specified, and may provide by coupons or otherwise, for the payment of the future dividends on the share or shares included in the warrant, hereinafter referred to as a “share warrant”.

• Marginal note:Rights of bearer

  (2) A share warrant entitles the bearer thereof to the shares therein specified, and the shares may be transferred by delivery of the warrant.

• Marginal note:Bearer to be shareholder on surrender of warrant

  (3) The bearer of a share warrant is, subject to the provisions and regulations respecting share warrants contained in the letters patent or supplementary letters patent, entitled, on surrendering it for cancellation, to have his name entered on the books of the company as the holder of the shares specified in such share warrant, and the company is responsible for any loss incurred by any person by reason of the company entering on its books the name of the bearer of a share warrant in respect of the shares therein specified without the warrant being surrendered and cancelled.

• Marginal note:Rights of bearer under regulations

  (4) The bearer of a share warrant may, if the provisions and regulations respecting share warrants so provide, be deemed to be a shareholder of the company either to the full extent or for any purposes defined by such regulations; except that he shall not be qualified in respect of the shares specified in the warrant for being a director of the company.

• Marginal note:Entries on issue of share warrants

  (5) On the issue of a share warrant the company shall remove from its books the name of the shareholder then entered therein as holding such share or shares as if he had ceased to be a shareholder, and shall enter in such books the following particulars, namely:

  • (a) the fact of the issue of the warrant;

  • (b) a statement of the shares included in the warrant; and

  • (c) the date of the issue of the warrant.

• Marginal note:Particulars required

  (6) Until the warrant is surrendered, the particulars specified in subsection (5) shall be deemed to be the particulars required by this Act to be entered in the books of the company in respect of such share or shares, and, on the surrender, the date of the surrender shall be entered, as if it were the date at which a person ceased to be a shareholder.

• Marginal note:Bearer not entitled to vote

  (7) Unless the bearer of a share warrant is entitled to attend and vote at meetings of shareholders, the shares represented by such share warrant shall not be counted as part of the capital stock of the company for the purposes of any meeting of shareholders.

Transfer of Shares

Marginal note:Invalid without entry

• 39 (1) No transfer of shares, unless made by sale under execution or under the decree, order or judgment of a court of competent jurisdiction, is, until entry thereof has been duly made in the register of transfers or in a branch register of transfers of the company, valid for any purpose whatsoever, save only as exhibiting the rights of the parties thereto toward each other, and if absolute of rendering any transferee jointly and severally liable with the transferor to the company and to its creditors.

• Marginal note:Exception

  (2) Notwithstanding subsection (1), the delivery of any certificate for fully paid shares, with a duly executed transfer endorsed thereon or delivered therewith, constitutes a valid transfer of the shares comprised therein, if such shares are listed on any recognized stock exchange at the time of such delivery, but, until entry of such transfer is duly made in the register of transfers or in a branch register of transfers of the company, the company may treat the person in whose name the shares comprised in the said certificate stand on the books of the company as being solely entitled to receive notice of and vote at meetings of shareholders and to receive any payments in respect of such shares whether by way of dividends or otherwise.

Marginal note:Unpaid shares

• 40 (1) No transfer of shares whereof the whole amount has not been paid in shall be made without the consent of the directors.

• Marginal note:Directors liable

  (2) Where any such transfer is made, with the consent of the directors, to a person who is not apparently of sufficient means to fully pay up such shares, subject to subsection (3), the directors are jointly and severally liable to the company and its creditors in the same manner and to the same extent as the transferring shareholder, but for such transfer, would have been liable.

• Marginal note:Exoneration

  (3) Where any director, present when any such transfer is allowed, forthwith, or where any director then absent, within one week after he becomes aware of such transfer, and is able to do so, delivers to the secretary or other officer of the company his written protest against the transfer, and, within eight days thereafter, causes such protest to be notified by registered letter to the Minister, such director shall thereby and not otherwise exonerate himself from such liability.

• Marginal note:Transferee liable if call unpaid

  (4) Where a share upon which a call is unpaid is transferred with the consent of the directors, the transferee is liable for the call to the same extent and with the same liability to forfeiture of the share, as if he had been the holder when the call was made, and the transferor also remains liable for the call until it has been paid.

Marginal note:Transfer may not be restricted

• 41 (1) Subject to this section and section 41.1 and to the power of the company by by-law to prescribe the form of transfer and to regulate the mode of transferring and registering transfers of its shares, the right of a holder of fully paid shares of a public company to transfer the same may not be restricted.

• Marginal note:Declining registration

  (2) Where the letters patent, supplementary letters patent or by-laws confer that power on the directors, they may decline to permit the registration of a transfer of fully paid shares belonging to a shareholder who is indebted to the company except in the case of shares listed on a recognized stock exchange.

Marginal note:“Constrained-share company”

• 41.1 (1) In this section “constrained-share company” means a public company that is declared by its letters patent or supplementary letters patent to be a constrained-share company.

• Marginal note:Declaration by letters patent

  (2) The letters patent or supplementary letters patent of a public company may declare the company to be a constrained-share company when the company is one in respect of which any class or description of persons may not have a significant or controlling interest, directly or indirectly, in its shares or any class or classes thereof if

  • (a) the company is to qualify under any other Act of the Parliament of Canada or any regulations thereunder

    • (i) for any licence or permit to carry on or continue its undertaking or any part thereof in Canada, or

    • (ii) as a Canadian newspaper or periodical, or

  • (b) any other company in which the company has a direct or indirect interest through the holding of shares in other corporations is to qualify

    • (i) under any Act of the Parliament of Canada or any regulation thereunder for any licence or permit to carry on or continue its undertaking or any part thereof in Canada, or

    • (ii) as a Canadian newspaper or periodical under any Act of the Parliament of Canada.

• Marginal note:Idem

  (3) The letters patent or supplementary letters patent of a public company may declare the company to be a constrained-share company when the company is one that is incorporated with the objects of investing in the shares of other corporations and it has a significant or controlling interest directly or indirectly through the holding of shares in a federally incorporated trust, insurance, loan, small loans or sales finance company.

• Marginal note:Application for letters patent

  (4) An application for supplementary letters patent declaring a public company to be a constrained-share company shall not be acted upon unless the application is approved by at least three-fourths of the votes cast at a special general meeting of the shareholders called for the purpose.

• Marginal note:Special provisions

  (5) Notwithstanding any other provision of this Act, the Special Provisions Applicable to Constrained-share Companies set out in the schedule apply in respect of a constrained-share company.

• Marginal note:Company to disclose status

  (6) When a company becomes a constrained-share company, the company shall thereafter disclose that it is a constrained-share company and in what respect it is a constrained-share company in

  • (a) any share certificates issued by the company,

  • (b) any offer made to the public of its securities and any prospectus or document of a similar nature issued by the company in respect of its securities,

  • (c) any proxy form or proxy information circular sent to the shareholders, and

  • (d) any financial statements of the company sent to the shareholder.

• Marginal note:Offence and penalty

  (7) Every person who, being a director, officer, employee or agent of a constrained-share company, knowingly authorizes or permits a violation of any provision of section 2, 3 or subsection 7(1) of the Special Provisions Applicable to Constrained-share Companies set out in the schedule 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 one year or to both.

• Marginal note:Idem

  (8) Every person who knowingly violates any provision of section 5 of the Special Provisions Applicable to Constrained-share Companies set out in the schedule 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 one year or to both.

• Marginal note:Idem

  (9) A company that contravenes subsection (6) of this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.

Marginal note:Transmission by will or intestacy

• 42 (1) Where a transmission of shares or other securities of a company takes place by virtue of any testamentary act or instrument, or in consequence of an intestacy, and the probate of the will or letters of administration or document testamentary, or other judicial or official instrument under which the title, whether beneficial or as trustee, or the administration or control of the personal estate of the deceased is claimed to vest, purports to be granted by any court or authority in Canada, or in any other part of the Commonwealth and Dependent Territories, or in any foreign country, the probate of the said will or the said letters of administration or the said document testamentary or, in the case of a transmission by notarial will in the Province of Quebec, a copy thereof duly certified in accordance with the laws of the said Province, or the said other judicial or official instrument, or an exemplified copy thereof or extract therefrom under the seal of such court or other authority, without any proof of the authenticity of such seal or other proof whatever, shall be produced; and a copy thereof, together with a declaration in writing showing the nature of such transmission, signed and executed by such one or more of the persons claiming by virtue thereof as the company may require, or, if any such person is any other company, signed and executed by an officer of such other company, shall be deposited with an officer of the company or other person authorized by the directors of the company to receive the same.

• Marginal note:Justification for action of directors

  (2) Such production and deposit insufficient justification and authority to the directors for paying the amount or value of any dividend, coupon, bond, debenture or obligation or share, or transferring, or consenting to the transfer of any bond, debenture or obligation or share, in pursuance of, and in conformity with such probate, letters of administration or other such document.

Marginal note:Transfer of shares of a deceased shareholder

43 A transfer of the shares or other interest of a deceased shareholder, made by his personal representative, is, notwithstanding that the personal representative is not himself a shareholder, of the same validity as if he had been a shareholder at the time of his execution of the instrument of transfer.

Calls

Marginal note:When and how calls may be made

• 44 (1) The directors may by resolution call in and demand from the shareholders the whole or any part of the amount unpaid on shares by them subscribed or held, at such times and places and in such payments or instalments as the letters patent, supplementary letters patent, this Part, the by-laws or the terms of issue of such shares require or allow.

• Marginal note:Calls when demand made

  (2) A call shall be deemed to have been made at the time when the resolution of the directors making such call was passed.

• Marginal note:Notice that shares may be forfeited

  (3) The demand shall state that in the event of non-payment the shares in respect of which the call was made will be liable to be forfeited.

• Marginal note:Failure to pay

  (4) Where a shareholder fails to pay any call due by him, on or before the day appointed for the payment thereof, he is liable to pay interest on the same at the rate of six per cent per annum from the day appointed for payment to the time of actual payment thereof.

Marginal note:Payment in advance on shares

• 45 (1) The directors may, if they think fit, receive from any shareholder, willing to pay in advance, all or any part of the moneys uncalled and unpaid upon any shares held by him.

• Marginal note:Interest may be allowed

  (2) Upon all or any of the moneys so paid in advance the company may, until the moneys would, but for such payment in advance, become presently payable, pay interest at such rate not exceeding eight per cent per annum, as is agreed upon between the shareholder who pays such moneys in advance and the company.

Marginal note:Forfeiture of shares for non-payment of calls

• 46 (1) Where, after such demand or notice as is prescribed by the letters patent, supplementary letters patent or by resolution of the directors, or by the by-laws of the company, any call made upon any share is not paid within such time as by such letters patent, supplementary letters patent or by resolution of the directors or by the by-laws is limited in that behalf, the directors, in their discretion, by resolution to that effect duly recorded in their minutes, may summarily declare forfeited any shares whereon such call is not paid.

• Marginal note:Revert to company

  (2) The shares so declared forfeited thereupon become the property of the company, and, subject to any provisions of the by-laws of the company, may be sold or otherwise disposed of in such manner as the directors think fit.

• Marginal note:Liability of holders to creditors

  (3) Notwithstanding the forfeiture, the holder of the shares at the time of forfeiture continues liable to the company and to its creditors for the full amount unpaid on such shares at the time of forfeiture, less any sums that are subsequently received by the company in respect thereof.

Marginal note:Directors may enforce payment

47 The directors may, if they see fit, instead of declaring forfeited any share or shares, enforce payment of all calls, and interest thereon, by action in any court of competent jurisdiction.

Liability of Shareholders

Marginal note:Limitation of liability of shareholders

• 48 (1) The shareholders of the company are not, as such, responsible for any act, default or liability of the company, or for any engagement, claim, payment, loss, injury, transaction, matter or thing relating to or connected with the company.

• Marginal note:Liability

  (2) The liability of a shareholder in respect of any share held by him in the company, in respect of which he is liable as a shareholder, is limited

  • (a) in the case of a share with nominal or par value, to the amount unpaid thereon; and

  • (b) in the case of a share without nominal or par value, to the unpaid amount of the consideration for which the share was issued by the company.

Marginal note:Executors, etc., not personally liable

49 No executor, administrator, tutor, curator, committee, guardian or trustee who is entered on the books of the company as a shareholder and therein described as representing in any such capacity a named estate, trust or person, is personally liable in respect of the share that he so represents, notwithstanding any neglect or omission on the part of the company to enter the proper description in its books; but the estate or person so represented continues to be liable as if the testator, intestate, minor, ward, lunatic or interdicted person, cestui que trust or other person were entered in the books of the company as the holder of such shares.

Marginal note:Mortgagee not personally liable

• 50 (1) No mortgagee of any share in the company, or person holding such share as collateral security, notwithstanding that the mortgagee or other person is entered on the books of the company as the holder of the share, is personally liable in respect of that share, if the mortgagee or other person is described in the books of the company as representing a named mortgagor or person giving the collateral security, notwithstanding any neglect or omission on the part of the company to enter the proper description in its books; but the mortgagor or other person giving the collateral security is liable, as if he were entered on the books of the company, as the holder of the share.

• Marginal note:“Mortgagee”

  (2) The word “mortgagee,” as used in this section includes a trustee for holders of debentures.

Alteration of Share Capital

Marginal note:By-law for consolidation, reduction, increase, etc., of share capital

• 51 (1) Subject to confirmation by supplementary letters patent, a company may from time to time by by-law,

  • (a) subdivide any shares with or without par value, of any class;

  • (b) consolidate all shares with par value, of any class, into shares of larger par value not exceeding the par value of one hundred dollars each;

  • (c) consolidate all shares without par value, of any class, so that the authorized number of such shares is reduced;

  • (d) change all or any of its previously authorized shares with par value, issued or unissued, into the same or a different number of shares of any class or classes without par value and not having priority as to capital or being subject to redemption;

  • (e) change all or any of its previously authorized shares without par value, issued or unissued, into the same or a different number of shares of any class or classes with par value;

  • (f) classify or reclassify any shares without par value;

  • (g) increase the capital of the company; and

  • (h) cancel any shares with or without par value, that at the date of the enactment of the by-law have not been subscribed for or agreed to be issued, and diminish the amount of the authorized capital of the company by the amount of the shares so cancelled.

• Marginal note:Altering capital structure

  (2) Subject to confirmation by supplementary letters patent, a company may from time to time by by-law alter its capital in any other way not provided for under subsection (1), if such alteration is not a reduction of capital to which sections 52 to 60 or section 134 would apply.

• Marginal note:Sanction and confirmation

  (3) No by-law under subsection (1) shall take effect until it is sanctioned by at least two-thirds of the votes of the holders of each class of shares thereby affected, cast at a special general meeting of shareholders called for the purpose and confirmed by supplementary letters patent.

• Marginal note:Other alteration of capital

  (4) Subject to subsection (5), a by-law under subsection (2) shall not take effect until it is sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders called for the purpose and confirmed by supplementary letters patent.

• Marginal note:Additional confirmation

  (5) Where the holders of any class of shares would be affected by a by-law under subsection (2), the by-law shall not take effect until, in addition to the sanction required under subsection (4),

  • (a) it has been unanimously approved in writing by the holders of all classes of shares affected;

  • (b) it has been unanimously approved by all classes of shares affected, by vote cast at a special general meeting of the shareholders called for the purpose; or

  • (c) it has been approved in the manner, and by the shareholders, specifically set out in the terms of the conditions attaching to such shares if such terms appear in the letters patent or supplementary letters patent of the company.

• Marginal note:Purchase of fractions of shares by company

  (6) For the purpose of any consolidation of shares pursuant to subsection (1), the company may purchase fractions of shares but the company shall sell any shares held from any such purchase within two years after such purchase.

• Marginal note:Cancellation of shares

  (7) A cancellation of shares pursuant to paragraph (1)(h) shall be deemed not to be a reduction of capital within the meaning of this Part.

Reduction of Capital

Marginal note:By-law for reduction of capital

• 52 (1) Subject to confirmation by supplementary letters patent, a company may by by-law reduce its capital in any way, and in particular without prejudice to the generality of the foregoing, may

  • (a) extinguish or reduce the liability on any of its shares in respect of capital not paid-up;

  • (b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid-up capital that is lost or unrepresented by available assets; and

  • (c) either with or without extinguishing or reducing liability on any of its shares and either with or without reducing the number of such shares pay off any paid-up capital that is in excess of the wants of the company.

• Marginal note:By-law to be sanctioned and confirmed

  (2) No such by-law shall take effect until it is sanctioned by at least two-thirds of the votes cast at a special general meeting of shareholders called for the purpose and confirmed by supplementary letters patent.

• Marginal note:Cancellation of preferred shares

  (3) Notwithstanding anything contained in this section, where pursuant to subsection 13(2) preferred shares are issued providing for redemption or purchase for cancellation out of capital, and such shares are so redeemed or purchased for cancellation, then, upon the filing of notice thereof with the Minister pursuant to section 63, they are thereupon cancelled, and the authorized and the issued capital of the company shall be thereby decreased; and subsections (1) and (2) of this section and sections 53 to 60 do not apply.

Marginal note:Objections by creditors

• 53 (1) Where the proposed reduction of capital involves either diminution of liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital, and in any other case if the Minister so directs, every creditor of the company who at the date of the petition for supplementary letters patent is entitled to any debt or claim that, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, is entitled to object to the reduction.

• Marginal note:List of objecting creditors

  (2) The Minister shall settle a list of creditors so entitled to object, and for that purpose shall ascertain, as far as possible without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction.

• Marginal note:Creditor not consenting to reduction

  (3) Where a creditor entered on the list whose debt or claim is not discharged or determined does not consent to the reduction, the Minister may, if he thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the Minister may direct, the following amount, that is to say,

  • (a) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim; or

  • (b) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the Minister after the like inquiry and adjudication as if the company were being wound up.

• Marginal note:When section does not apply

  (4) Where a proposed reduction of capital involves either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital, the Minister may, if having regard to any special circumstances of the case he thinks proper so to do, direct that this section shall not apply as regards any class or any classes of creditors.

Marginal note:Confirming reduction by supplementary letters patent

54 The Minister may issue supplementary letters patent confirming a reduction of capital of a company on such terms as he thinks fit, if, with respect to every creditor of the company who under this Part is entitled to object to the reduction, the Minister is satisfied by the certificate of an authorized officer of the company that either each such creditor’s consent to the reduction has been obtained or his debt or claim has been discharged, determined or secured.

Marginal note:Liability of shareholders in respect of reduced shares

• 55 (1) Subject to subsections (2) and (3), in the case of a reduction of capital, a shareholder of the company, past or present, is not liable in respect of any share to any call or contribution, notwithstanding that such share was not fully paid up immediately prior to such reduction, if the by-law reducing the capital purports to extinguish the liability on such share, or beyond the reduced amount of the liability on such share, if such by-law purports to reduce the liability on such share.

• Marginal note:Idem

  (2) Where any creditor, entitled in respect of any debt or claim to object to the reduction of capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his claim, not entered on the list of creditors, and, after the reduction, the company is unable, within the meaning of the Winding-up Act to pay the amount of his debt or claim, then

  • (a) every person who was a shareholder of the company at the date of the supplementary letters patent is liable to contribute for the payment of that debt or claim an amount not exceeding the amount that he would have been liable to contribute if the company had commenced to be wound up on the day before the date of the supplementary letters patent; and,

  • (b) if the company is wound up, the court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list as if they were ordinary contributories in a winding-up.

• Marginal note:Rights saved

  (3) Nothing in this section affects the rights of the contributories among themselves.

Marginal note:Penalty for concealment of name of creditor

56 Any director, manager, or officer of the company who wilfully conceals the name of any creditor entitled to object to the reduction, or wilfully misrepresents the nature or amount of the debt or claim of any creditor, or aids or abets in or is privy to any such concealment or misrepresentation, is guilty of an indictable offence and liable to five years imprisonment or to a penalty not exceeding one thousand dollars, or to both.

Marginal note:Publication of reason for reduction

57 In any case of reduction of capital the Minister may require the company to publish, as he directs, the causes that led to the reduction, the reasons for reduction or such other information in regard thereto as he may think expedient with a view to giving proper information to the public.

Marginal note:Period limited for supplementary letters patent

58 An application to the Minister for the issue of supplementary letters patent to confirm a by-law for any one or more of the purposes set forth in sections 51 and 52 may be made only within six months after the by-law has been sanctioned by the shareholders.

Marginal note:Evidence of by-law

• 59 (1) Before such supplementary letters patent are issued, the company shall establish to the satisfaction of the Minister the due passage and sanction of such by-law and the expediency andbona fide character of the increase or reduction or other alteration of capital provided for in the by-law.

• Marginal note:How evidence taken

  (2) The Minister may, for that purpose, take any requisite evidence in writing, by oath or affirmation or by statutory declaration, and shall keep of record any such evidence as taken.

Marginal note:Granting of supplementary letters patent

• 60 (1) Upon the due passage and sanction of such by-law being so established, the Minister may grant such supplementary letters patent.

• Marginal note:Notice

  (2) Notice of the granting of such supplementary letters patent shall be forthwith given by the Minister in the Canada Gazette but the supplementary letters patent shall take effect from their date.

Preferred Shares and Shares with Special Rights

Marginal note:When consent required for redemption or conversion of preferred shares

61 Unless preferred shares, or shares to which are attached special rights, restrictions, conditions or limitations, are issued subject to redemption or conversion, the same shall not be subject to redemption or conversion without the consent of the holders thereof, unless such conversion or redemption is effected

• (a) pursuant to an amendment or change of the provisions attaching to such shares, made or approved in the manner (if any) set forth in such provisions; or

• (b) pursuant to an arrangement or compromise under section 134 or 135.

Marginal note:Purchase or redemption of its shares by a company

• 62 (1) A company may, subject to subsection (2), purchase for cancellation or redeem any class of fully paid preferred shares of the company in respect of which the letters patent or supplementary letters patent provide a right in favour of the company to redeem or to purchase the shares for cancellation, otherwise than out of capital, if the purchase or redemption is made in accordance with the provisions of the letters patent or supplementary letters patent.

• Marginal note:How redemption or purchase to be made

  (2) A redemption or purchase for cancellation of shares shall be made either

  • (a) out of the proceeds of an issue of shares made for the purpose of the redemption or purchase, or

  • (b) by payments made without impairment of the capital of the company out of the ascertained net profits of the company set aside by the directors and available for the purpose of the redemption or purchase;

  but no redemption or purchase for cancellation shall be made out of the ascertained net profits of the company when cumulative dividends are in arrears on the preferred shares to be so redeemed or purchased.

• Marginal note:Not reduction of capital

  (3) The redemption or purchase for cancellation of its shares by a company in accordance with this section shall be deemed not to be a reduction of the paid-up capital of the company.

• Marginal note:Capital surplus

  (4) The surplus resulting from a redemption or purchase for cancellation of shares of a company made in accordance with this section shall be designated as a capital surplus of the company and shall not be reduced or distributed except as provided in sections 52 to 60.

• Marginal note:Saving provision

  (5) Nothing in this section shall be construed to apply to a redemption or purchase for cancellation of shares that are redeemed or purchased for cancellation pursuant to subsection 52(3).

Marginal note:Notice of redemption or conversion to be filed

63 When any class of shares is created or becomes subject to redemption or purchase for cancellation or conversion into any other class, and such redemption or purchase for cancellation or conversion is effected in any month, notice thereof, setting forth the number of shares of the class redeemed or purchased for cancellation or converted and the number of shares and the class into which conversion is made in that month, and also setting forth whether and the extent to which any such redemption or purchase for cancellation was made out of capital, shall be filed with the Minister before the end of the following month.

Marginal note:Monthly statement of surrendered shares

64 When a company has issued any class of mutual fund shares within the meaning of section 14, the company shall each month file with the Department a statement giving the number of each class of such mutual fund shares that have been accepted for surrender during the preceding month.

Borrowing Powers

Marginal note:Borrowing powers

• 65 (1) When authorized by by-law, duly passed by the directors and sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders duly called for considering the by-law, the directors of a company may from time to time

  • (a) borrow money upon the credit of the company;

  • (b) limit or increase the amount to be borrowed;

  • (c) issue debentures or other securities of the company;

  • (d) pledge or sell such debentures or other securities for such sums and at such prices as may be deemed expedient; and

  • (e) secure any such debentures, or other securities, or any other present or future borrowing or liability of the company, by mortgage, hypothec, charge or pledge of all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the company, and the undertaking and rights of the company.

• Marginal note:Delegation of powers

  (2) Any such by-law may provide for the delegation of such powers by the directors to such officers or directors of the company to such extent and in such manner as may be set out in the by-law.

• Marginal note:Limitation as to bills and notes

  (3) Nothing in this section limits or restricts the borrowing of money by the company on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the company.

Marginal note:Perpetual debenture

66 A condition contained in any debentures or in any deed for securing any debentures is not invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.

Marginal note:Power to reissue debentures in certain cases

• 67 (1) Where either before or after the 1st day of October 1934, a company has redeemed any debentures previously issued, then

  • (a) unless any provision to the contrary, whether express or implied, is contained in the debentures or in any contract entered into by the company; or

  • (b) unless the company has, by resolution of its shareholders or by some other act, manifested its intention that the debentures shall be cancelled,

  the company shall have power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place, but the reissue of a debenture or the issue of another debenture in its place, under the power by this section given to a company, shall not be treated as the issue of a new debenture for the purposes of any provision limiting the amount or number of debentures to be issued.

• Marginal note:Priorities on reissue

  (2) On a reissue of redeemed debentures, the person entitled to the debentures has the same rights and priorities as if the debentures had never been redeemed.

• Marginal note:Particulars in balance sheet

  (3) Where a company has power to reissue debentures that have been redeemed, particulars with respect to the debentures that can be so reissued shall be included in every balance sheet of the company.

• Marginal note:Debentures deposited to secure advances

  (4) Where a company has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remained so deposited.

• Marginal note:Right saved

  (5) Nothing in this section prejudices any power to issue debentures in the place of any debentures, paid off or otherwise satisfied or extinguished, reserved to a company by its debentures or by any deed securing payment of the same.

Information as to Mortgages and Charges

Marginal note:Delivery of prescribed particulars

• 68 (1) In respect of every mortgage or charge created by a company after the 1st day of October 1934, being either

  • (a) a mortgage or charge for the purpose of securing any issue of debentures,

  • (b) a mortgage or charge on uncalled share capital of the company,

  • (c) a floating charge on the undertaking or property of the company,

  • (d) a mortgage or charge on calls made but not paid, or

  • (e) a mortgage or charge on goodwill, on any patent or licence under a patent, on any trade mark or on any copyright or licence under a copyright,

  the company shall deliver to the Minister the prescribed particulars of the mortgage or charge, and a copy of the instrument, if any, by which the mortgage or charge is created or evidenced, certified by the secretary of the company, or, in the Province of Quebec, a notarial copy of such instrument within thirty days after the date of its creation.

• Marginal note:Exception

  (2) Subsection (1) does not apply to the giving by a company of any warehouse receipt or bill of lading or any security under the provisions of the Bank Act as collateral security for the payment of any debt or liability of the company, nor to a floating charge created by a company on its accounts receivable or any of them after the 1st day of October 1934.

• Marginal note:Idem

  (3) In the case of a mortgage or charge created out of Canada comprising solely property situated outside Canada, it is sufficient if the prescribed particulars and the certified copy of the instrument by which the mortgage or charge is created or evidenced are delivered to the Minister within ninety days after the date on which the instrument or copy could in due course of post and if dispatched with due diligence have been received in Canada.

• Marginal note:Property acquired subject to mortgage or charge

  (4) Where after the 1st day of October 1934 a company acquires any property that is subject to a mortgage or charge of any such kind that, if it had been created by the company after the acquisition of the property, particulars thereof would have been required to be delivered to the Minister under subsection (1), the company shall deliver to the Minister the prescribed particulars of the mortgage or charge and a copy of the instrument, if any, by which the mortgage or charge is created or evidenced, certified by the secretary of the company, or, in the Province of Quebec, a notarial copy of such instrument, within ninety days after the date on which the acquisition is completed.

• Marginal note:Register to be kept by Minister

  (5) The Minister shall keep with respect to each company a register in the prescribed form in which shall be entered with respect to every mortgage or charge a copy of which has been delivered to the Minister the date of the mortgage or charge, the amount secured by it, short particulars of the property mortgaged or charged and the names of the mortgagees or persons entitled to the charge or the particulars required to be delivered to the Minister under subsection (6) as the case may be.

• Marginal note:Particulars

  (6) Where a series of debentures containing or giving by reference to any other instrument any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a company, it is sufficient if there are delivered to the Minister within thirty days after the execution of the deed containing the charge or if there is no such deed after the execution of any debentures of the series, the following particulars:

  • (a) the total amount secured by the whole series;

  • (b) the date of the covering deed, if any, by which the security is created or defined or if there is no such deed the date of the issuance of the first debenture of the series;

  • (c) a general description of the property charged; and

  • (d) the names of the trustees, if any, for the debenture holders;

  together with a copy of the covering deed, if any, certified by the secretary of the company under the corporate seal or in the Province of Quebec a notarial copy thereof, or if there is no such deed a copy of one of the debentures of the series certified by the secretary of the company under its corporate seal; and the Minister shall on payment of the prescribed fee enter those particulars in the register.

• Marginal note:Rate of commission

  (7) Where any commission, allowance, or discount has been paid or made either directly or indirectly by the company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be delivered for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount, or allowance so paid or made.

• Marginal note:Debentures as security

  (8) The deposit of any debentures as security for any debt of the company shall not, for the purposes of subsection (7), be treated as the issue of the debentures at a discount.

• Marginal note:Failure to comply

  (9) Failure to comply with this section does not affect the validity of the mortgage or charge or of the debentures issued, but every director or officer knowingly and wilfully authorizing or permitting such default and the company are liable on summary conviction to a fine not exceeding twenty dollars for every day during which the default continues.

• Marginal note:Register to be open to inspection

  (10) The register kept in pursuance of this section shall be open to inspection by any person on payment of the prescribed fee.

• Marginal note:Copies of instruments to be kept at head office

  (11) Every company shall cause a copy of every instrument creating any mortgage or charge particulars of which are required to be delivered to the Minister under this section to be kept at the head office of the company.

Marginal note:Notice of order appointing receiver

• 69 (1) Where any person obtains an order for the appointment of a receiver or receiver and manager of the property of a company, or appoints such receiver or receiver and manager under any powers contained in any instrument, he shall, within fourteen days from the date of the order or of the appointment under the powers contained in the instrument, give notice of the fact to the Minister who shall on payment of the prescribed fee enter the fact in the register.

• Marginal note:Penalty

  (2) Where any person wilfully makes default in complying with the requirements of this section he is liable on summary conviction to a fine not exceeding twenty dollars for every day during which the default continues.

Marginal note:Entry of satisfaction

70 The Minister, on evidence being given to his satisfaction that the debt, for which any mortgage or charge was created and entered on the register kept by him, has been paid or satisfied, may order that a memorandum of satisfaction be entered on such register, and shall if required furnish the company with a copy thereof.

Marginal note:Company’s register of mortgages

• 71 (1) Every company shall keep a register of mortgages and enter therein all mortgages and charges particulars of which are required to be delivered to the Minister and of all other mortgages and charges specifically affecting property of the company, not being mortgages or charges to which subsection 68(1) does not apply, giving in each case a short description of the property mortgaged or charged, the amount of the mortgage or charge, and, except in the case of securities to bearer, the names and addresses, if known, of the mortgagees or persons entitled thereto unless such names and addresses, if known, are entered in a register of holders of debentures kept by or on behalf of the company.

• Marginal note:Omission of entries

  (2) Where any director, manager, or other officer of the company wilfully authorizes or permits the omission of any entry required to be made in pursuance of this section, he is liable on summary conviction to a fine not exceeding two hundred dollars.

Marginal note:Right to inspect copies of instruments

• 72 (1) The copies of instruments creating any mortgage or charge that, under this Act, are required to be delivered to the Minister, and the register of mortgages kept in pursuance of section 71, shall be open at all reasonable times to the inspection of any creditor or shareholder of the company without fee, and the register of mortgages shall also be open to the inspection of any other person on payment of such fee, not exceeding twenty-five cents for each inspection, as the company may prescribe.

• Marginal note:Where inspection refused

  (2) Where inspection of the said copies or register is refused, any officer of the company wrongfully refusing inspection, and every director or officer of the company wilfully authorizing or permitting such refusal, is liable on summary conviction to a fine not exceeding twenty dollars, and a further fine not exceeding ten dollars for every day during which the wrongful refusal continues.

Marginal note:Right of debenture holders to inspect register

• 73 (1) Every register of holders of debentures of a company shall, except when closed in accordance with the by-laws of the company or the provisions of the debentures or the covering deed, if any, during such period or periods, not exceeding in the whole thirty days in any year, as may be specified in the said by-laws or provisions, be open to the inspection of the registered holder of any such debentures, and of any shareholder, but subject to such reasonable restrictions as the company may impose, so that at least two hours in each day are appointed for inspection, and every such holder may require a copy of the register or any part thereof on payment of ten cents for every hundred words required to be copied.

• Marginal note:Copy of trust deed to be forwarded

  (2) A copy of any trust deed for securing payment of any issue of debentures shall be forwarded to every holder of any such debentures at his request, on payment in the case of a printed trust deed of the sum of twenty-five cents, or such less sum as may be prescribed by by-law of the company, or, where the trust deed has not been printed, on payment of ten cents for every hundred words required to be copied.

• Marginal note:Where inspection refused

  (3) Where inspection is wrongfully refused, or a copy is wrongfully refused or not forwarded, the company is liable on summary conviction to a fine not exceeding twenty dollars, and to a further fine not exceeding ten dollars for every day during which the refusal or neglect to forward a copy continues, and every director, manager, secretary, or other officer of the company who wilfully authorizes or permits such refusal shall incur the like penalty.

Prospectuses and Offers to the Public

Marginal note:Definitions

74 In this Part

offer to the public

offre au public

offer to the public means in the case of a company (other than a private company), with relation to securities issued or to be issued by it, every attempt or offer to dispose of, or solicitation of a subscription or application for, or solicitation of an offer to subscribe or apply for any of its securities or any interest in such securities, made by or on behalf of the company, and every such attempt or offer or solicitation made by any underwriter, as hereinafter defined, shall be deemed to have been made by or on behalf of the company, but “offer to the public” does not include

• (a) preliminary negotiations or preliminary agreements between the company and an underwriter, or

• (b) any offer of securities of the company to a director or directors of such company only; (offre au public)

prospectus

prospectus

prospectus means any prospectus, notice, circular, advertisement, letter or other graphic communication, offering to the public for subscription or purchase or other acquisition or indicating that there are available for subscription or purchase or other acquisition (and notwithstanding that such communication may state that the securities therein mentioned have been fully subscribed for or sold or that the communication is for the purpose of record only) any securities of a company issued or to be issued by it, but a communication in respect of a security shall not be deemed a prospectus

• (a) if it is proved that prior to such communication a prospectus as required by this Act was mailed or delivered by or on behalf of the company to the person to whom the communication was made, or

• (b) if the communication contains abona fide statement that a prospectus, a copy of which has been filed under this Act, will be promptly furnished on request, and contains no statement either of fact or opinion relating to the assets of the company owned or to be acquired, its earnings or prospective earnings, or to any business carried on or proposed to be carried on by it, except a statement specifying the nature of such business; (prospectus)

securities of the company or its securities

valeurs de la compagnie ou ses valeurs

securities of the company or its securities means securities issued or to be issued by the company; (valeurs de la compagnie ou ses valeurs)

subscription

souscription

subscription in relation to any securities of a company includes a purchase or other acquisition, except by way of security only, of such securities on any reissue, sale, or other disposal thereof, by or on behalf of the company or an underwriter and the words “subscriber” or “applicant” or other words referring to a person who subscribed or applies for securities of the company include any purchaser or proposed purchaser of such securities from the company or an underwriter; (souscription)

underwriter

souscripteur éventuel à forfait

underwriter includes

• (a) any person who, to the knowledge of the company, proposes to subscribe for securities of the company with a view to the resale to the public of those securities or a part thereof,

• (b) any person to whom a commission is proposed or intended to be paid by the company in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or in consideration of his procuring or agreeing to procure subscriptions, whether absolute or conditional, for any securities of the company to be offered to the public for subscription. (souscripteur éventuel à forfait)

Marginal note:Prospectus to be dated

• 75 (1) Every prospectus issued by or on behalf of a company shall be dated, and such date shall, unless the contrary is proven, be taken as the date of issue of the prospectus.

• Marginal note:Filing

  (2) A copy of such prospectus, signed at the end by every person who is named therein as a director or proposed director of the company, or his agent authorized in writing, shall be filed with the Minister within seven days from its date, and after such filing every such prospectus shall state on its face that a copy has been filed with the Minister in accordance with this Act.

• Marginal note:Date and signature

  (3) The Minister shall not accept any such prospectus for filing unless it is dated and the copy thereof signed in the manner required by this section.

• Marginal note:Prospectus issued without filing of copy

  (4) Where a prospectus issued by or on behalf of a company is issued (except for the purpose of filing a copy as aforesaid) without a copy thereof being so filed, the company and every person who is knowingly a party to the issue of the prospectus, are liable on summary conviction to a fine not exceeding twenty dollars for every day from the date of the issue of the prospectus until a copy thereof is so filed.

• Marginal note:Omission accidental

  (5) The chief justice or acting chief justice of the court of the province in which the head office of the company is situated, or a judge of the said court designated by either of them, on being satisfied that the omission to file a copy of the prospectus, or that the omission or mis-statement of any particular prescribed to be contained in such prospectus, was accidental, or due to inadvertence, or some other sufficient cause, or is not of a nature to prejudice the position of subscribers to any of the securities referred to in the prospectus, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as may seem to the judge just and expedient, order that the time for filing be extended or dispense with the signature of any director or directors or make such other order as to the judge seems proper, and a copy of the prospectus filed in accordance with the order of the judge, together with a copy of the order, shall be deemed for all purposes a compliance with subsection (2).

Marginal note:Prospectus to be filed before issue to public

• 76 (1) The securities of the company shall not be offered to the public for subscription by or on its behalf unless a prospectus in respect of those securities has been filed with the Minister.

• Marginal note:Conditions to be fulfilled before application accepted

  (2) The company shall not accept any application in respect of any of its securities offered by or on its behalf to the public for subscription unless a copy of such prospectus has been delivered to the subscriber or applicant at least twenty-four hours prior to the acceptance of his subscription or application or mailed to the applicant at his usual address or other address furnished by him or on his behalf so that it should be received by him in the ordinary course of post at least twenty-four hours prior to the acceptance of his application, but in the case of any application received by the company through an underwriter, this subsection shall conclusively be deemed to have been complied with by the company, if the company prior to the acceptance of such applications obtained from the underwriter a statutory declaration to the effect that copies of the prospectus have been mailed or delivered to all persons making those applications so received, at such times and in such manner as to entitle the company to accept such applications; and any application received by the company for the purposes of this Part shall conclusively be deemed to have been made on the faith of such prospectus.

• Marginal note:Application may be rescinded

  (3) In the event of non-compliance with subsection (2), the applicant, or if the securities have been issued or allotted on his direction to some other person, then such other person if he is still the owner of such securities is entitled to have the application for such securities or the issuance or allotment thereof rescinded, if written notice of the exercise of such right of rescission was served on the company within thirty days from the date of receipt of notice of allotment or from the date of issuance of the securities, as the case may be, or within thirty days from the date of delivery or mailing to such applicant of a copy of the prospectus filed with the Minister in respect of the securities, whichever is the shorter period.

• Marginal note:Form of application to be issued with prospectus

  (4) A company shall not issue any form of application for its securities that are offered by it or on its behalf to the public for subscription unless the form of application is issued with a prospectus filed with the Minister in respect of those securities.

• Marginal note:Penalty

  (5) In the event of any contravention of any of the provisions of subsection (1), (2) or (4), the company and any director, officer or other person who knowingly contravenes or permits or authorizes the contravention of those provisions are liable upon summary conviction to a fine not exceeding one thousand dollars.

• Marginal note:Idem

  (6) Any underwriter who offers any securities of a company for public subscription before the provisions of subsection (1) have been complied with by the company or without causing the provisions of subsection (2) to be complied with is guilty of an offence and liable upon summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both.

• Marginal note:Idem

  (7) A director, officer or agent of the company who acts in contravention of the provisions of subsection (4) is liable on summary conviction to a fine not exceeding one thousand dollars.

Marginal note:Provisions not applicable in certain cases

77 Sections 75, 76, and 79 to 84 do not apply in respect of an offer by a company of its securities

• (a) to existing holders of its securities exclusively, for subscription or in exchange for the securities held by them, where no commission or other remuneration is paid or given directly or indirectly to others in connection with such transaction, or

• (b) to existing holders of its securities or to other creditors pursuant to an arrangement or compromise or reorganization of the company or adjustment of the rights of such holders or other creditors.

Marginal note:When prospectus required by other jurisdictions

• 78 (1) Where a company makes an offer to the public of its securities in any province or any foreign country wherein it is a general requirement of law that a prospectus or a document of a similar nature be filed with a public authority thereof before an offer of securities may lawfully be made to the public, whether or not the particular offer to the public of the securities of the company in that province or country may by the laws thereof be made without the filing of a prospectus or document of a similar nature, the company need not comply with the provisions of sections 75, 76, 79 and sections 81 to 84 with respect to such offering and, subject to subsection (4), those sections do not apply thereto.

• Marginal note:Filing copy with Department

  (2) Where a company has filed with a public authority in a province or foreign country, in accordance with the requirements of the law thereof, a prospectus or other document of a similar nature in respect of any offer to the public of its securities in such province or foreign country, the company shall, within ten days after such filing, file with the Department a copy of such prospectus or document certified by such public authority, or by an officer of the company, together with a statement of the date and place of filing, which copy shall be kept available for public inspection in the Department.

• Marginal note:Liability for statements in prospectus

  (3) Section 80 appliesmutatis mutandis to any prospectus or document of a similar nature issued by or on behalf of the company and filed with a public authority in any province or foreign country for the purpose of making an offer to the public therein.

• Marginal note:Directing companies to file prospectus

  (4) Notwithstanding subsection (1), the Minister may, in any case where he deems it in the public interest to do so, direct a company to comply with sections 75, 76, 79 and sections 81 to 84.

• Marginal note:No representations to be made of filing prospectus or copy thereof

  (5) No company or person shall make any representation, written or oral, that the Minister has in any way passed upon the financial standing, fitness or conduct of a company, or upon the merits of any securities of a company, by reason of the filing with the Department of any prospectus or of any copy of a prospectus or document certified by a public authority in any province or foreign country.

Marginal note:Specific requirements as to particulars of prospectus

• 79 (1) Every prospectus issued by or on behalf of a company shall state

  • (a) the date of incorporation of the company and the address of the head office;

  • (b) the names, descriptions and addresses of the directors and proposed directors, if any, and chief executive officers and of the auditors, if any;

  • (c) the general nature of the business actually transacted or to be transacted by the company;

  • (d) particulars of the share capital, authorized, issued and paid up, the number and classes of shares and the par value thereof, or if without par value so stating, a description of the respective voting rights, preferences, conversion and exchange rights, rights to dividends, profits or capital of each class, including redemption rights and rights on liquidation or distribution of capital assets;

  • (e) particulars of the securities, if any, covered by options outstanding or proposed to be given and the price or prices at which and the date or dates by which such options must be exercised;

  • (f) the number of securities of, each class (which in the case of debentures or other obligations shall bear an appropriate and correct descriptive title) offered by the prospectus and the issue price and the amount payable on the application for and allotment of the securities and in the case of a second or subsequent offer of securities the amount offered for subscription on each previous offer within the two preceding years and the amount actually allotted and the amount paid up thereon;

  • (g) the specific purposes in detail and the approximate amounts to be devoted to such purposes, so far as determinable, for which the securities offered are to supply funds and if the funds are to be raised in part from other sources the amount thereof and the sources thereof shall be stated;

  • (h) the aggregate remuneration paid by the company during its last financial year, if completed at least three months prior to the offer, and estimated to be paid or payable during the current financial year (or if such remuneration is not capable of approximate estimation then the basis of determining same) to directors and (separately stated) to officers who individually have received or may be entitled to receive remuneration in excess of ten thousand dollars per annum;

  • (i) the estimated net proceeds to be derived from the securities offered if they are fully taken up and paid for;

  • (j) where shares are offered to the public for subscription, the minimum amount, if any, that in the opinion of the directors must be raised by the issue of those shares in order to provide the sums, or, if any part thereof is to be defrayed in any other manner, the balance of the sum required to be provided for the following matters:

    • (i) the purchase price of any property purchased or to be purchased that is to be defrayed in whole or in part out of the proceeds of the issue;

    • (ii) any preliminary expenses payable by the company;

    • (iii) any commission payable by the company to any person in consideration of his agreeing to subscribe for or procuring or agreeing to procure subscriptions for any shares in the company;

    • (iv) the repayment of any moneys borrowed by the company in respect of the foregoing matters; and

    • (v) the repayment of bank loans, if any;

  • (k) the amount, if any, paid within the two preceding years or payable as commission (but not including commission to sub- underwriters) for subscribing or agreeing to subscribe or procuring or agreeing to procure subscriptions for any shares in, or debentures of, the company, or the rate of any such commission;

  • (l) in the case of a company that has not been carrying on business for more than one year, the amount or estimated amount of preliminary expenses;

  • (m) particulars of any property purchased or acquired by the company, or proposed to be purchased or acquired, the purchase price of which is to be defrayed in whole or in part out of the proceeds of the issue or has been paid within the last two preceding years or is to be paid in whole or in part in securities of the company, or the purchase or acquisition of which has not been completed at the date of issue of the prospectus and the nature of the title or interest therein acquired or to be acquired by the company;

  • (n) the names and addresses of the vendors of any property under paragraph (m) and the amount (specifying separately the amount, if any, for goodwill) paid or payable in cash or securities of the company to the vendors for the property and where there is more than one separate vendor or the company is a sub-purchaser, the amount so payable to each vendor; where the vendors or any of them are a firm, the members of the firm shall not be treated as separate vendors, and where the property consists of securities of any other company purchased or acquired or proposed to be purchased or acquired by the company on substantially similar terms from more than twenty-five separate vendors it is sufficient to state the nature and terms of the transaction with particulars of the name and address of each person who is the vendor of securities aggregating more than ten per cent of the total amount of the securities so purchased or acquired or proposed to be purchased or acquired;

  • (o) the number and amount of securities that, within the two preceding years, have been issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which those securities have been issued or are proposed or intended to be issued;

  • (p) where debentures are offered, particulars of the security that has been or will be created for those debentures, specifying the property, if any, comprised or to be comprised in the security and the nature of the title to the property and, if more than twenty-five per cent in value of such property consists or is to consist of shares, debentures or obligations payable in money, particulars of the rights, if any, of the company to substitute other shares, debentures or obligations;

  • (q) particulars of any services rendered or to be rendered to the company that are to be paid for by the company wholly or partly out of the proceeds of the issue or have been within the last two preceding years or are to be paid for by securities of the company exclusive of commissions to be disclosed under paragraph (k) and amounts included under paragraph (l) and amounts included under paragraph (o);

  • (r) the amount paid within the two preceding years or intended to be paid to any promoter with his name and address and the consideration for such payment;

  • (s) the dates of and the parties to and the nature of every material contract entered into within the two preceding years, and a reasonable time and place at which any such material contract or a copy thereof may be inspected; but this requirement does not apply to a contract entered into in the ordinary course of business carried on or intended to be carried on by the company;

  • (t) any provisions of the by-laws as to the remuneration of the directors;

  • (u) full particulars of the nature and extent of the interest, if any, of every director in the promotion of, or in any property acquired by the company within the preceding two years or proposed to be acquired by the company, or, where the interest of such director consists in being a partner in a firm, the nature and extent of the interest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or securities or otherwise by any person either to induce him to become, or to qualify him as a director, or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the company, but this paragraph does not apply in the case of a prospectus issued more than one year after the date at which the company commenced business, except as to the particulars relating to property proposed to be acquired by the company;

  • (v) the amount of the consideration received for the issue of shares without nominal or par value and lawfully set aside as distributable surplus prior to the 1st day of July 1965;

  • (w) in the case of a company that has been carrying on business for less than three years, the length of time during which the business of the company has been carried on, and, if such company has acquired or proposes to acquire (either by direct acquisition or indirectly by ownership of shares or otherwise) a business that has been carried on for less than three years, also the length of time during which such business has been carried on;

  • (x) where shares are offered, the names and addresses of the persons, if known, who, by reason of beneficial ownership of securities of the company or any agreement in writing, are in a position to, or are entitled to, elect or cause to be elected a majority of the directors of the company.

• Marginal note:Information to be in separate part of prospectus

  (2) The information required by subsection (1) to be stated in a prospectus shall be contained in a separate part of the prospectus commencing with the words “Statutory Information” in conspicuous type and the said information shall be set out in type at least as large as that used in the body of the prospectus, except that the information required by paragraphs (1)(b) and (f) may be stated in any part of the prospectus.

• Marginal note:Contents of prospectus

  (3) Every prospectus issued by or on behalf of a company shall contain

  • (a) in the case of a company that has been carrying on business for more than one year prior to the issue of the prospectus, a balance sheet of the company, or, if the company has any subsidiaries, a consolidated balance sheet of the company and all its subsidiaries certified by the company’s auditors, as at the end of the last completed financial year of the company or as at a date not more than one hundred and twenty days prior to the issue of the prospectus, whichever is the later;

  • (b) in the case of a company that has not been carrying on business for more than one year prior to the issue of the prospectus, but, prior to the issue of the prospectus, has acquired (either by direct acquisition or indirectly by ownership of shares or otherwise) a business that has been carried on for more than one year prior to the issue of the prospectus, a balance sheet of the company, or, if the company has any subsidiaries, a consolidated balance sheet of the company and all its subsidiaries as at a date subsequent to the acquisition of such business and not more than one hundred and twenty days prior to the issue of the prospectus, certified by the company’s auditors and a statement certified by accountants, who shall be named in the prospectus, specifying the nature and the value as shown by the books of such business, of any moneys or other assets of such business excluded from such acquisition or distributed or disposed of otherwise than in the ordinary course within six months of such acquisition;

  • (c) in the case of a company that has been carrying on business for more than one year prior to the issue of the prospectus, a report by the auditors of the company with respect to the profits of the company and the nature and source thereof, or the losses of the company, as the case may be, in respect of the latest completed financial year of the company and of the two preceding financial years, year by year or, if the company has been carrying on business for less than three years, then for such time as the company has been carrying on business and, if the company has any subsidiaries, such report shall be made with respect to the profits or losses of the company and all its subsidiaries;

  • (d) if the proceeds, or any part of the proceeds of the securities offered are or is to be applied directly or indirectly in the purchase of any business, or, in the case of a company that has not been carrying on business for more than one year prior to the issue of the prospectus, but has acquired or proposes to acquire (either by direct acquisition or indirectly by ownership of shares or otherwise) any business, a report made by accountants, who shall be named in the prospectus, upon the profits or losses of the business and the nature and source thereof in respect of each of the three completed financial years thereof immediately preceding the issue of the prospectus or in respect of such less number of completed financial years as such business has been in operation.

• Marginal note:Balance sheet or certificate

  (4) Every balance sheet or certificate of the company’s auditors referred to in subsection (3) shall

  • (a) state the total amount of arrears, if any, of the cumulative dividends accrued on any shares of the company entitled to cumulative preferential dividends and the date from which such arrears commenced to accrue,

  • (b) state the manner in which fixed assets have been valued, and, if valued in accordance with an appraisal, the date of the appraisal and the name of the appraiser,

  • (c) if the reserve, if any, for depreciation in respect of such fixed assets, is, in the opinion of the auditors certifying such balance sheet, inadequate, contain a statement to that effect,

  • (d) unless, in the opinion of said auditors, the reserve for bad and doubtful accounts is adequate or no such provision is required, contain a statement that in the opinion of the auditors sufficient provision has not been made, and

  • (e) unless inventories are valued at cost or market value, whichever is the lower, if the value shown, in the opinion of the auditors, exceeds market value, contain a statement to that effect, and, in any event, a statement of the manner in which such value has been determined.

• Marginal note:Report as to profits

  (5) Every report with respect to profits referred to in subsection (3) shall show separately any profits that in the opinion of such auditors or accountants, as the case may be, are of a non-recurring nature, shall exclude unrealized profits, and, if the securities in relation to which the prospectus is issued are shares of the company, such profits shall be shown after income taxes actually paid or payable or estimated if the amount has not been finally determined.

• Marginal note:Vendor defined

  (6) For the purposes of this section every person shall be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the company, in any case where

  • (a) the purchase money is not fully paid at the date of issue of the prospectus,

  • (b) the purchase money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscription by the prospectus, or

  • (c) the contract depends for its validity or fulfilment on the result of that issue.

• Marginal note:If property to be taken on lease

  (7) Where any of the property to be acquired by the company is to be taken on lease, this section applies as if the expression “vendor” included the lessor, and the expression “purchase money” included the consideration for the lease, and the expression “sub-purchaser” included a sub-lessee.

• Marginal note:Certain conditions void

  (8) Any condition requiring or binding any applicant for securities to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, is void.

• Marginal note:When director not responsible

  (9) In the event of non-compliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus does not incur any liability by reason of the non-compliance or contravention if

  • (a) as regards any matter not disclosed, he proves that he was not cognizant thereof,

  • (b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part, or

  • (c) the non-compliance or contravention was in respect of matters that, in the opinion of the court dealing with the case, were immaterial, or was otherwise such as might, in the opinion of that court, having regard to all the circumstances of the case, reasonably be excused;

  but, in the event of non-compliance with the requirements contained in paragraph (1)(u) no director or other person incurs any liability in respect of the non-compliance unless it is proved that he had knowledge of the matters not disclosed.

• Marginal note:Liability not diminished

  (10) Nothing in this section limits or diminishes any liability that any person may incur under the general law or this Act apart from this section.

Marginal note:Liability for statements in prospectus

• 80 (1) Where a prospectus issued by or on behalf of a company invites persons to subscribe for securities of the company,

  • (a) every person who is a director of the company at the date of the issue of the prospectus,

  • (b) every person who has authorized himself to be named and is named in the prospectus as a director or as a proposed director or as having agreed to become a director either immediately or after an interval of time,

  • (c) every person being a promoter of the company, and

  • (d) every person who has authorized the issue of the prospectus,

  is liable to pay compensation to all persons who subscribe for any securities of the company on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith, unless it is proved

  • (e) that having consented to become a director of the company he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent,

  • (f) that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent,

  • (g) that, after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto, and gave reasonable public notice of the withdrawal, and of the reason therefor, or

  • (h) that

    • (i) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable ground to believe and did, up to the time of the allotment of the securities, believe, that the statement was true,

    • (ii) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and

    • (iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document;

  but a person is liable to pay compensation as aforesaid if it is proved that he had no reasonable ground to believe that the person making any such statement, report or valuation as is mentioned in subparagraph (h)(ii) was competent to make it.

• Marginal note:Prospectus containing name of person as director

  (2) Where the prospectus contains the name of a person as a director or proposed director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof, the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof, are liable to indemnify the person named as aforesaid against all damages, costs, and expenses to which he may be made liable by reason of his name having been inserted in the prospectus, or in defending himself against any action or legal proceedings brought against him in respect thereof.

• Marginal note:Recovering contribution

  (3) Every person who, by reason of his being a director or named as a director or as having agreed to become a director, or of his having authorized the issue of the prospectus, becomes liable to make any payment under this section may recover contribution, as in cases of contract, from any other person who, if sued separately, would have been liable to make the same payment, unless the person who has become so liable was, and that other person was not, guilty of fraudulent misrepresentation.

• Marginal note:Definitions

  (4) For the purposes of this section

  expert

  expert

  expert includes engineer, valuer, accountant, and any other person whose profession gives authority to a statement made by him; (expert)

  promoter

  promoteur

  promoter means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company. (promoteur)

Marginal note:Immediate offer in contemplation before prospectus issued

• 81 (1) No prospectus shall be issued by or on behalf of a company unless an immediate offer to the public is in contemplation by the company, and the Minister shall not accept any prospectus for filing unless it is accompanied by a statutory declaration of the president or a vice-president or the manager of the company stating that such immediate offer is in contemplation and the approximate date when it is proposed that such offer shall be made.

• Marginal note:Offer within thirty days

  (2) Unless the company makes abona fide offer to the public, within thirty days after the copy of the prospectus has been filed, to subscribe for the securities to which the prospectus relates,

  • (a) the company shall forthwith file a written notification with the Minister that such offer has not been made within the said thirty days,

  • (b) no offer to the public to subscribe for such securities on the faith of that prospectus shall be made,

  • (c) no offer to the public to subscribe for such securities shall be made unless and until a new prospectus in relation to such securities complying in all respects with the provisions of this Act has been filed with the Minister by or on behalf of the company,

  • (d) such new prospectus shall be deemed to have been substituted for the prospectus originally filed, and

  • (e) the provisions of subsection (1) apply to such new prospectus.

• Marginal note:Non-compliance

  (3) For any non-compliance with or contravention of this section the company, and every officer or director thereof responsible for such non-compliance or participating in such contravention, as the case may be, are liable on summary conviction to a fine not exceeding one thousand dollars.

Marginal note:When new prospectuses to be filed

• 82 (1) From time to time if, during the period during which any securities in relation to which a prospectus has been filed by the company are being offered to the public for subscription, the company enters into any transaction otherwise than in the ordinary course of business and of a nature or effect such that particulars of the transaction would have been required to be stated in the prospectus filed if the transaction had taken place prior to the date of such prospectus, then if the prospectus filed might be fairly regarded as misleading in respect of any particular that is material, if it had been dated as of a date subsequent to such transaction and had not included the particulars aforesaid, the company shall within twenty days from the entering into of such transaction file a new prospectus in relation to the securities or the amount thereof in excess of those for which applications have been received and accepted by the company prior to the date on which such new prospectus ought to be filed.

• Marginal note:Offering not deemed a second offering

  (2) In the event provided for in subsection (1) the company shall immediately desist from offering any securities in relation to which a prospectus has been filed until a new prospectus complying in all respects with this Act has been filed and any further offer of such securities to the public for subscription shall be made by means of such new prospectus, but for the purposes of paragraph 79(1)(f) the offering of such securities by such new prospectus shall not be deemed to be a second or subsequent offering.

• Marginal note:Non-compliance

  (3) For any non-compliance with or contravention of this section

  • (a) if such non-compliance is in respect of the requirements of subsection (1) the company and every officer and director having knowledge thereof are liable on summary conviction to a fine not exceeding twenty dollars for every day during which such non-compliance continues;

  • (b) if such contravention is in respect of the requirements of subsection (2), the company and every officer and director participating in such contravention are liable on summary conviction to a fine not exceeding five hundred dollars, but no director or officer of the company incurs any liability by reason of such non-compliance or contravention if

    • (i) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part, or

    • (ii) the non-compliance or contravention was in respect of matters that, in the opinion of the court dealing with the case, were immaterial, or was otherwise such as ought, in the opinion of the court, having regard to all the circumstances of the case, reasonably to be excused.

Marginal note:Restriction on naming person as a director in prospectus

83 A person shall not be named as a director or proposed director of a company in any prospectus filed by or on behalf of the company unless before, the filing of the prospectus by or on behalf of the company he has by himself or his agent authorized in writing

• (a) signed and filed with the Minister a consent in writing to act as such director, and

• (b) either signed the application for incorporation and memorandum of agreement for a number of shares not less than his qualification or signed and filed with the Minister a contract in writing to take from the company and pay for his qualification shares, or made and filed with the Minister a statutory declaration showing that he is qualified for election or appointment as a director in accordance with this Part.

Marginal note:Unlawful to call at any house

• 84 (1) No person acting for or on behalf a company shall call at any residence for the purpose of offering securities of such company to the public or any member of the public for subscription.

• Marginal note:Penalty

  (2) A person who acts or incites, causes or procures any person to act, in contravention this section, is liable on summary conviction to a fine not exceeding five hundred dollars and in the case of a second or subsequent offence to imprisonment for a term not exceeding twelve months or to a fine not exceeding one thousand dollars or to both.

• Marginal note:Where person convicted is a company

  (3) Where a person convicted of an offence under this section is a company, whether a company within the meaning of this Act or not, every director and every officer concerned in the management of the company is guilty of the like offence unless he proves that the act constituting the offence took place without his knowledge or consent.

• Marginal note:Definitions

  (4) In this section

  call

  s’adresser

  call includes telephonic communications; (s’adresser)

  public

  public

  public does not include close personal friends, business associates or customers with whom the person making the offer has been in the habit of doing regular business in the sale of or obtaining subscriptions for securities in the past; (public)

  residence

  résidence

  residence means any building or part of a building in which the occupant thereof resides either permanently or temporarily and any premises appurtenant thereto, but does not include an office used for business purposes. (résidence)

Dividends

Marginal note:Definitions

• 85 (1) In this section

  dividend

  dividende

  dividend includes bonus or any distribution to shareholders as such; (dividende)

  mining company

  compagnie minière

  mining company means a company that for the time being carries on as its principal business the business of operating any producing mining-properties owned or controlled by it. (compagnie minière)

• Marginal note:No dividends when company insolvent

  (2) No dividend shall be declared when the company is insolvent or that renders the company insolvent or, subject to subsection (4), that will impair the capital of the company, and in determining the solvency of the company for the purposes of this subsection, no account shall be taken of any increase in the surplus or reserves of the company resulting merely from the writing up of the values of the assets of the company, unless such writing up was made more than five years before the date of the declaration of the dividend.

• Marginal note:Shares in lieu of dividends

  (3) For the amount of any dividend that the directors may lawfully declare payable in money, they may issue therefor shares of the company as fully paid up, or they may credit the amount of such dividend on the shares of the company already issued but not fully paid up, and the liability of the holders of such shares thereon shall be reduced by the amount of such dividend.

• Marginal note:Payment of dividends by company whose assets are of wasting character

  (4) Nothing in this Act prevents a company of which at least seventy-five per cent in value of the assets are of a wasting character, or any mining company, from declaring or paying dividends out of its funds derived from the operations of the company notwithstanding that the paid-up capital of the company may be thereby reduced or impaired, if such payment does not reduce the value of its remaining assets so that they will be insufficient to meet all the liabilities of the company then existing exclusive of its paid-up capital.

• Marginal note:Declaring and paying dividend when company is insolvent

  (5) Where the directors of the company declare and pay any dividend when the company is insolvent, or any dividend the payment of which renders the company insolvent, or that impairs the capital of the company, they are, until repayment of the dividends so declared and paid, jointly and severally liable to the company and to its creditors for the debts of the company then existing or thereafter contracted, but such liability is limited to the amount of such dividends and interest that have not been repaid to the company.

• Marginal note:Exoneration

  (6) Where any director present when a dividend mentioned in subsection (5) is declared, forthwith requests the entry on the minutes of the board of his protest against the dividend, or where any director then absent, within one week after he becomes aware of such declaration and is able so to do, delivers to the president, secretary or other officer of the company his protest against the dividend, and within eight days thereafter delivers or mails by registered letter a duplicate copy of his protest to the Minister, such director may thereby, and not otherwise, exonerate himself from such liability.

• Marginal note:Liability limited

  (7) Nothing in this section shall be deemed to impose upon directors of a company any liability of a character specified in subsection (5), by reason of a declaration or payment of any dividend permitted by subsection (4), or, if such dividend is in excess of the amount so permitted, beyond the amount of such excess.

• Marginal note:Sums due by shareholder may be deducted

  (8) The directors may deduct from the dividends payable to any shareholder all such sums of money as are due from him to the company on account of calls or otherwise.

Directors

Marginal note:Directors

• 86 (1) The affairs of the company shall be managed by a board of directors however designated.

• Marginal note:Fixed number

  (2) The board of directors of the company shall consist of a fixed number of directors not being fewer than three.

• Marginal note:Vacancies in board

  (3) Where there is any vacancy or vacancies in the board of directors, the directors then in office may exercise all the powers of the board so long as a quorum of the board remains in office.

• Marginal note:Where full board not elected

  (4) Where at any election of the directors of a company the full number of directors is not elected by reason of the disqualification, incapacity or death of any proposed nominees, the directors elected at that election may exercise all the powers of the board so long as the number of directors so elected would constitute a quorum.

Marginal note:First directors

87 The persons named as such in the letters patent shall be the directors of the company until replaced by others duly appointed in their stead.

Marginal note:Qualifications of directors elected

• 88 (1) Subject to subsection (2), no person shall be elected as a director of a company or appointed as a director to fill any vacancy unless he or any other company of which he is an officer or director, is a shareholder, and, if the by-laws of the company so provide, owning shares of the company absolutely in his own right or in the right of such other company to an amount required by the by-laws of the company and not in arrears in respect of any calls thereon.

• Marginal note:Election of a person holding shares in trust

  (2) Any person holding shares, not in arrears in respect of any call, as executor, administrator, tutor, curator, committee, guardian or trustee of a testator, intestate, minor, ward, lunatic or interdicted person, or cestui que trust may be elected or appointed a director, and where any such director ceases to hold shares in trust he thereupon ceases to be a director, and when any other company holds such shares in trust as aforesaid any officer or officers of such other company may be elected or appointed as a director or directors, and when such other company ceases to hold such shares in trust any officer so elected thereupon ceases to be a director.

• Marginal note:No liability for such director

  (3) A director elected or appointed under subsection (2) is not personally liable under section 99, but the estate or other beneficial owner of the shares held in trust by such director or by any other company of which such director is an officer is subject to all the liabilities imposed upon the directors by that section.

• Marginal note:No undischarged bankrupt to be elected

  (4) No person who is an undischarged bankrupt shall be elected or appointed as a director, and when any director becomes a bankrupt he thereupon ceases to be a director.

• Marginal note:Qualifying after election or appointment

  (5) Notwithstanding subsection (1), a person may become a director of a company if he becomes a shareholder within ten days after his election or appointment as a director, but if he fails to become a shareholder within such ten days, he thereupon ceases to be a director and shall not be re-elected or reappointed unless he is a shareholder of the company.

Marginal note:By-law for change in number

• 89 (1) A company may, by by-law, increase, or decrease to not less than three, the number of its directors.

• Marginal note:By-law to be sanctioned

  (2) No by-law for the purposes mentioned in subsection (1) is valid or shall be acted upon unless it is sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders of the company duly called for considering the by-law.

• Marginal note:Copy to be filed and open for inspection

  (3) A copy of the by-law certified under the seal of the company shall be forthwith filed with the Minister, and such copy shall be open for inspection, without fee, during normal office hours.

Marginal note:Election of directors

• 90 (1) Directors of the company shall be elected by the shareholders in general meeting of the company assembled at some place within Canada, at such times in such manner and for such term not exceeding two years as the letters patent or supplementary letters patent or, in default thereof, as the by-laws of the company prescribe; the letters patent or supplementary letters patent may nevertheless provide for the division of directors into classes, and in the event of such provision one class shall be elected in each year for a term not exceeding five years and one class shall retire from office in each year.

• Marginal note:Responsibility of elected directors

  (2) The directors of the company elected by the shareholders at the first general meeting of the company are responsible for all business transacted as a board of directors by the first directors of the company.

Marginal note:Failure to elect directors, how remedied

91 Where, at any time, an election of directors is not made or does not take effect at the proper time, the company shall not be held to be thereby dissolved; but such election may take place at any subsequent special general meeting of the shareholders duly called for that purpose; and the retiring directors shall continue in office until their successors are elected.

Marginal note:Election of directors

92 In the absence of other provisions in that behalf in the letters patent, supplementary letters patent or by-laws of the company,

• (a) the election of directors shall take place yearly, and all the directors then in office shall retire, but, if otherwise qualified, they are eligible for re-election;

• (b) every election of directors shall be by ballot;

• (c) so long as a quorum of directors remains in office, any vacancy occurring in the board of directors may be filled from among the qualified shareholders of the company, for the remainder of the term, by such directors as remain in office; and

• (d) the directors, from time to time, shall elect from among themselves a president and, if they see fit, a vice-president of the company; and they may also appoint all other officers thereof.

Marginal note:Director indemnified in suits respecting execution of his office

93 Every director of the company, and his heirs, executors and administrators, and estate and effects, respectively, may, with the consent of the company, given at any meeting of the shareholders thereof, from time to time and at all times, be indemnified and saved harmless out of the funds of the company, from and against,

• (a) all costs, charges and expenses whatever that such director sustains or incurs in or about any action, suit or proceeding that is brought, commenced or prosecuted against him, for or in respect of any act, deed, matter or thing whatever, made, done or permitted by him, in or about the execution of the duties of his office, and

• (b) all other costs, charges and expenses that he sustains, or incurs, in or about or in relation to the affairs thereof, except such costs, charges or expenses as are occasioned by his own wilful neglect or default.

Marginal note:Powers and duties of directors

94 The directors of a company may administer the affairs of the company in all things, and make or cause to be made for the company, any description of contract that the company may, by law, enter into; and may pass by-laws not contrary to law, or to the letters patent or supplementary letters patent, or to this Part, to regulate

• (a) the allotment of shares, the making of calls thereon, the payment thereof, the issue and registration of certificates for shares, the forfeiture of shares for non-payment, the disposal of forfeited shares and of the proceeds thereof, and the transfer of shares;

• (b) the declaration and payment of dividends;

• (c) the amount of the share qualification of the directors and the remuneration of the directors;

• (d) the appointment, functions, duties and removal of all agents, officers and servants of the company, the security, if any, to be given by them to the company and their remuneration;

• (e) the time and place for the holding of meetings of the shareholders, the calling of meetings of the shareholders and of the board of directors, the quorum at such meetings, the requirements as to proxies, and the procedure in all things at such meetings; and

• (f) the conduct in all other particulars of the affairs of the company not otherwise provided for in this Part.

Marginal note:Confirmation of by-laws

95 The directors may repeal, amend or re-enact such by-laws, but every such by-law, except by-laws made respecting agents, officers and servants of the company, and every repeal, amendment or re-enactment thereof unless in the meantime sanctioned at a special general meeting of shareholders, duly called for that purpose, shall only have force until the next annual meeting of the shareholders, and in default of confirmation thereat shall, at and from that time, cease to have force.

Marginal note:Executive committee

96 The board of directors of the company whenever it consists of more than six, may, if authorized by by-law duly passed by the directors, and sanctioned by at least two-thirds of the votes cast at a special general meeting of shareholders duly called for considering the by-law, elect from its number an executive committee consisting of not less than three, which executive committee shall have power to fix its quorum at not less than a majority of its members and may exercise such powers of the board as are delegated by such by-law, subject to any restrictions contained in any such by-law and to any regulations imposed from time to time by the directors.

Marginal note:Action to be taken where serious impairment of capital discovered

97 Whenever the officers of a public company, or any of them have become aware of any substantial impairment of the capital of the company, they shall forthwith inform the directors of the nature and extent of such impairment; and thereupon, if in the opinion of the directors such impairment of its capital renders the company insolvent, it shall be the duty of the directors immediately to call a special general meeting of the shareholders of the company for the purpose of making to the shareholders full disclosure of the nature and extent of such impairment of the capital of the company.

Marginal note:Director interested in a contract with the company

• 98 (1) Subject to this section, it is the duty of a director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company to declare his interest at a meeting of directors of the company.

• Marginal note:At what meeting declaration to be made

  (2) In the case of a proposed contract the declaration required by this section to be made by a director shall be made at the meeting of directors at which the question of entering into the contract is first taken into consideration, or, if the director is not at the date of that meeting interested in the proposed contract, at the next meeting of the directors held after he becomes so interested, and, in a case where the director becomes interested in a contract after it is made, the declaration shall be made at the first meeting of directors held after the director becomes so interested.

• Marginal note:What is deemed sufficient declaration

  (3) For the purposes of this section, a general notice given to the directors of a company by a director to the effect that he is a shareholder of or otherwise interested in any other company or is a member of a specified firm and is to be regarded as interested in any contract made with such other company or firm shall be deemed to be a sufficient declaration of interest in relation to any contract so made.

• Marginal note:Director not to vote if interested

  (4) No director shall vote in respect of any contract or proposed contract in which he is so interested as aforesaid and if he does so vote his vote shall not be counted, but this prohibition does not apply

  • (a) in the case of any contract by or on behalf of the company to give to the directors or any of them security for advances or by way of indemnity,

  • (b) in the case of a private company, where there is no quorum of directors in office who are not so interested, or

  • (c) in the case of any contract between the company and any other company where the interest of the director in the last-mentioned company consists solely in his being a director or officer of such last-mentioned company, and the holder of not more than the number of shares in such last-mentioned company requisite to qualify him as a director.

• Marginal note:When director not accountable

  (5) A director who has made a declaration of his interest in a contract or proposed contract in compliance with this section and has not voted in respect of such contract contrary to the prohibition contained in subsection (4), if such prohibition applies, is not accountable to the company or any of its shareholders or creditors by reason only of such director holding that office or of the fiduciary relationship thereby established for any profit realized by such contract.

• Marginal note:“Contract” and “meeting of directors”

  (6) For the purposes of this section “contract” includes “arrangement” and “meeting of directors” includes a meeting of an executive committee elected in accordance with section 96.

• Marginal note:No liability when contract confirmed

  (7) Nothing in this section imposes any liability upon a director in respect of the profit realized by any contract that has been confirmed by the vote of shareholders of the company at a special general meeting called for that purpose.

Marginal note:Liability of directors for wages unsatisfied

• 99 (1) The directors of the company are jointly and severally liable to the clerks, labourers, servants and apprentices thereof, for all debts not exceeding six months wages due for services performed for the company while they are such directors respectively.

• Marginal note:When not liable

  (2) A director is not liable under subsection (1) unless

  • (a) the company has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part, or

  • (b) the company has within that period gone into liquidation or has been ordered to be wound up under the Winding-up Act, or has made an authorized assignment under the Bankruptcy Act or a receiving order under the Bankruptcy Act has been made against it and a claim for such debt has been duly filed and proved,

  nor unless he is sued for such debt while a director or within one year after he has ceased to be a director.

• Marginal note:Amount recoverable

  (3) Where execution has so issued the amount recoverable against the director shall be the amount remaining unsatisfied on the execution.

• Marginal note:Directors’ preference

  (4) Where the claim for such debt has been proved in liquidation or winding-up proceedings or under the Winding-up Act or the Bankruptcy Act a director, upon payment of the debt, is entitled to any preference that the creditor paid would have been entitled to, and where a judgment has been recovered he is entitled to an assignment of the judgment.

Marginal note:Definitions

• 100 (1) In this section and in sections 100.1 to 100.6,

  associate

  associé

  associate, when used to indicate a relationship with any person, means

  • (a) any company, wherever or however incorporated, of which that person beneficially owns, directly or indirectly, equity shares carrying more than ten per cent of the voting rights attached to all equity shares of that company for the time being outstanding,

  • (b) any partner of that person acting by or for the partnership of which they are both partners,

  • (c) any trust or estate in which that person has a substantial beneficial interest or in respect of which he serves as a trustee or in a similar capacity,

  • (d) a spouse of that person or an individual who is cohabiting with that person in a conjugal relationship, having so cohabited for a period of at least one year,

  • (e) a child of that person or of the spouse or individual referred to in paragraph (d), and

  • (f) a relative of that person or of the spouse or individual referred to in paragraph (d), if that relative has the same residence as that person; (associé)

  insider or insider of a company

  dirigeant ou dirigeant d’une compagnie

  insider or insider of a company means

  • (a) any director or officer of a public company,

  • (b) any person who beneficially owns, directly or indirectly, equity shares of a public company carrying more than ten per cent of the voting rights attached to all equity shares of the company for the time being outstanding, but in computing the percentage of voting rights attached to equity shares owned by an underwriter there shall be excluded any equity shares that have been acquired by him as underwriter in the course of distribution to the public of such shares, but such exclusion ceases to have effect on completion or cessation of the distribution to the public by him, or

  • (c) any person who exercises control or direction over the equity shares of a public company carrying more than ten per cent of the voting rights attached to all equity shares of the public company for the time being outstanding; (dirigeant ou dirigeant d’une compagnie)

  public company

  compagnie publique

  public company means a public company

  • (a) that has outstanding any of its securities in respect of which a prospectus or a document of a similar nature has been filed with and accepted by the Minister under section 75 or by a public authority within the meaning of section 78, or

  • (b) any of the shares of which are listed or posted for trading on any recognized stock exchange in Canada. (compagnie publique)

• Marginal note:Presumption

  (2) For the purposes of this section and sections 100.1 to 100.6,

  • (a) every director or officer of any other company that is itself an insider of a company shall be deemed to be an insider of that latter company;

  • (b) every director or officer of any other company that is a subsidiary company shall be deemed to be an insider of its holding company;

  • (c) an individual shall be deemed to own beneficially securities beneficially owned by any other company controlled by him or owned by any other company affiliated with that first mentioned company;

  • (d) any other company shall be deemed to own beneficially securities beneficially owned by its affiliated companies; and

  • (e) the acquisition or disposition by an insider of a call, put or other transferable option with respect to any securities shall be deemed a change in the beneficial ownership of the securities to which the transferable option relates.

• Marginal note:Exception

  (3) Subparagraph (1)(b)(iii) does not apply to a trust company that exercises control or direction as a trustee over the equity shares of a public company carrying more than ten per cent of the voting rights attached to all equity shares of the public company for the time being outstanding unless the trustee corporation exercises such control or direction on behalf of any one person who beneficially owns, directly or indirectly, equity shares of the public company carrying more than ten per cent of the voting rights attached to all equity shares of the company for the time being outstanding.

Marginal note:Reporting insider interest

• 100.1 (1) A person who is an insider of a company on the day on which this section comes into force shall, within ten days after the end of the month in which such day occurs, file with the Department of Consumer and Corporate Affairs a report, as of such day, of

  • (a) his direct or indirect beneficial ownership of securities of the company, and

  • (b) the control or direction that he exercises over the equity shares of the company,

  each of which ownership, control or direction mentioned in paragraphs (a) and (b) is hereinafter referred to as an “insider interest in the securities of the company”.

• Marginal note:Idem

  (2) A person who, after the day on which this section comes into force, becomes an insider of a company shall, within ten days after the end of the month in which he becomes an insider, file with the Department of Consumer and Corporate Affairs a report, as of the day on which he became an insider, of his insider interest in the securities of the company.

• Marginal note:Idem

  (3) If a person who is an insider of a company, but who has no insider interest in the securities of the company, acquires an insider interest in any such securities, he shall, within ten days after the end of the month in which he acquired such insider interest in the securities of the company, file with the Department of Consumer and Corporate Affairs a report, as of the date of such acquisition, of his insider interest in the securities of the company.

• Marginal note:Reporting change of interest

  (4) A person who has filed or is required to file a report under subsection (1), (2) or (3) and whose insider interest in the securities of the company changes from that shown or required to be shown in such report or in the last report filed by him under this section shall, within ten days following the end of the month in which such change takes place, if he was an insider of the company at any time during such month, file with the Department of Consumer and Corporate Affairs a report of his insider interest in the securities of the company at the end of such month and the change or changes therein that occurred during the month and give such details of each transaction as may be required by the regulations.

• Marginal note:Presumption

  (5) For the purposes of this section

  • (a) where any other company becomes an insider of a company, every director or officer of the first mentioned company shall be deemed to have been an insider of the second mentioned company for the previous six months or for such shorter period as he was a director or officer of the first mentioned company, and

  • (b) where a company became an insider of any other company, every director or officer of the second mentioned company shall be deemed to have been an insider of the first mentioned company for the previous six months or for such shorter period as he was a director or officer of the second mentioned company;

  and such director or officer shall within ten days after the end of the month in which he becomes an insider file with the Department of Consumer and Corporate Affairs such reports for the period as to which he is deemed to be an insider as he would have been required to file under this section had he been an insider for such period.

• Marginal note:Report of subsidiary

  (6) For the purposes of this section a report filed by any other company that includes securities beneficially owned by a subsidiary or deemed to be beneficially owned by a subsidiary by virtue of paragraph 100(2)(c) or that includes changes in a subsidiary’s beneficial ownership of securities shall be deemed to be a report filed by the subsidiary and the subsidiary need not file a separate report.

• Marginal note:Report of affiliate or controlled company

  (7) For the purposes of this section a report filed by an individual that includes securities beneficially owned or deemed to be beneficially owned by virtue of paragraph 100(2)(b) by a company controlled by the individual (hereinafter called the “controlled company”) or by an affiliated company, if any, of the controlled company or that includes changes in the beneficial ownership of the securities by that controlled company or affiliated company shall be deemed to be a report filed by the controlled company or by the affiliated company and the controlled company and the affiliated company need not file separate reports.

• Marginal note:Sufficient disclosure by individual

  (8) Where this Act requires the disclosure of the number or percentage of equity shares beneficially owned by an individual and, by virtue of paragraph 100(2)(b), one or more other companies will also have to be shown as beneficially owning those shares, a statement disclosing all such shares beneficially owned by the individual or deemed to be beneficially owned, and indicating whether the ownership is direct or indirect and, if indirect, indicating the name of the controlled company or company affiliated with the controlled company through which the shares are indirectly owned, and the number or percentage of the shares so owned shall be deemed sufficient disclosure without disclosing the name of the companies that are deemed to beneficially own the same shares.

• Marginal note:Sufficient disclosure by company

  (9) Where this Act requires the disclosure of the number or percentage of equity shares beneficially owned by any other company and, by virtue of paragraph 100(2)(c), one or more other companies will also have to be shown as beneficially owning those shares, a statement disclosing all such shares beneficially owned or deemed to be beneficially owned by the holding company and indicating whether the ownership is direct or indirect and, if indirect, indicating the name of the subsidiary or affiliated company through which the shares are indirectly owned and the number or percentage of the shares so owned shall be deemed sufficient disclosure without disclosing the name of the companies that are deemed to beneficially own the same shares.

• Marginal note:Exemption from provision

  (10) Upon the application of an interested person, supported by such affidavits, documents and other evidence from that or any other person as the Minister may require, the Minister may, if satisfied in the circumstances of the particular case that there is adequate justification for so doing, make an order on such terms and conditions as seem to him just and expedient exempting in whole or in part the person from the requirements of this section and, if the Minister so decides, such order may have retrospective effect.

Marginal note:Public inspection

• 100.2 (1) All reports filed under section 100.1, upon payment of the fee prescribed therefor by the regulations, shall be open to public inspection during ordinary business hours.

• Marginal note:Copies

  (2) The Minister may, upon the payment of the fee prescribed therefor by the regulations, provide any person with a copy of any of the documents referred to in subsection (1).

• Marginal note:Monthly periodical

  (3) The Minister may summarize in or as part of a monthly periodical for distribution to the public on payment of the fee prescribed therefor by the regulations, the information contained in the reports so filed as well as any exemption granted under subsection 100.1(10) and the reason therefor.

Marginal note:Offence and punishment

• 100.3 (1) Every person who is required to file a report under section 100.1 and who wilfully fails so to do is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both and, where the person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in such failure is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Idem

  (2) Every person who files a report under section 100.1 that is false or misleading by reason of the mis-statement or omission of a material fact is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both and, where the person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in the filing of the false or misleading report is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Saving

  (3) No person is guilty of an offence under subsection (2) if he did not know and in the exercise of reasonable diligence could not have known that the report was false or misleading by reason of the mis-statement or omission of a material fact.

• Marginal note:Consent required

  (4) No prosecution shall be brought under subsection (1) or (2) without the consent of the Minister and the production of a consent purporting to be signed by the Minister is receivable in evidence without proof of the signature or of his official character and without further proof thereof.

• Marginal note:Order from compliance

  (5) Where it appears to the Minister that any person has failed to comply with section 100.1, the Minister may apply to the chief justice or acting chief justice of the court of the province in which the head office of the company in respect of which the default occurred is situated, or a judge of such court designated by either of them, for an order requiring such person to comply therewith.

• Marginal note:Appeal

  (6) An interested person may appeal to the appellate court of the province in which is situated the head office of the company in respect of which the default occurred from any order made under subsection (6).

Marginal note:Liability of insider

• 100.4 (1) Every insider of a company, every person employed or retained by the company, the auditor of the company and every associate of the insider and affiliate of the insider within the meaning of subsection 125(3) who, in connection with a transaction relating to the securities of the company, makes use of any specific confidential information for his own benefit or advantage that, if generally known, might reasonably be expected to affect materially the value of the securities of the company, is liable to compensate any person for any direct loss suffered by that person as a result of the transaction, unless the information was known or ought reasonably to have been known to that person at the time of such transaction, and is also accountable to the company for any direct benefit or advantage received or receivable by such insider, employed or retained person, auditor, associate or affiliate, as the case may be, as a result of the transaction.

• Marginal note:Limitation

  (2) An action to enforce any right created by subsection (1) may be commenced only within two years after the date of completion of the transaction that gave rise to the cause of action, or if the transaction was required to be reported under section 100.1, then within two years from the time of reporting in compliance with that section.

• Marginal note:Presumption

  (3) For the purposes of this section, every director or officer of any other company that becomes an insider of a company shall be deemed to have been an insider of that latter company for the previous six months or for such shorter period as he was a director or officer of that other company.

Marginal note:Application to have action instituted

• 100.5 (1) Upon application by any person who was at the time of a transaction referred to in subsection 100.4(1) or is at the time of the application an owner of the securities of the company, or on the application of the Minister, the chief justice or acting chief justice of the court of the province in which the head office of the company is situated, or a judge of such court designated by either of them, may, if satisfied that

  • (a) such person has reasonable grounds for believing that the company has a cause of action under section 100.4, and

  • (b) either,

    • (i) the company has refused or failed to commence an action under section 100.4 within sixty days after receipt of a written request from such person so to do, or

    • (ii) the company has failed to prosecute diligently an action commenced by it under section 100.4,

  make an order, upon such terms as to the judge seem fit, directing that an action be commenced or continued by the Director of the Corporations Branch in the name of and on behalf of the company to enforce the liability created by section 100.4.

• Marginal note:Notice

  (2) The company and the Director of the Corporations Branch shall be given ten days notice of the hearing of any application under subsection (1) and each has a right to appear and be heard thereon.

• Marginal note:Order

  (3) Every order made under subsection (1) shall provide that the company shall cooperate fully in the institution and prosecution of the action and shall make available to the Director of the Corporations Branch all books, records, documents and other material or information relevant to such action and known to the company or reasonably ascertainable by the company.

• Marginal note:Appeal

  (4) An appeal from an order made under subsection (1) lies to the appellate court of the province in which the head office of the company is situated.

Marginal note:Prohibition

• 100.6 (1) An insider of a company shall not knowingly sell, directly or indirectly, any securities of the company, if the insider selling the securities

  • (a) does not own the securities to be sold, or

  • (b) if owning them, does not deliver them against the sale within twenty days thereafter, or does not within five days after the sale deposit them in the mails or other usual channels of transportation;

  but it is a defence to a prosecution for an offence described in paragraph (b) if the insider proves that notwithstanding the exercise of good faith he was unable to make such delivery or deposit within such time, or that to have done so would have caused undue inconvenience or expense.

• Marginal note:Put and call options

  (2) An insider of a company shall not knowingly,

  • (a) buy, directly or indirectly, any put option in respect of the securities of the company, or

  • (b) buy, directly or indirectly, any call option in respect of the securities of the company.

• Marginal note:Application

  (3) Subsection (1) does not apply to prevent an insider of a company

  • (a) from selling any securities of the company on which he holds an option to purchase, if, immediately after selling those securities short, he takes and carries through any necessary steps to exercise his option and deliver the securities so sold; or

  • (b) from selling any securities of the company in respect of which he holds other securities convertible into the securities sold short, if, immediately after selling those securities short, he takes and carries through any necessary steps to convert the other securities and deliver the securities so sold.

• Marginal note:Offence and penalty

  (4) Every insider who contravenes subsection (1) or (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Title

  (5) A contravention of subsection (1) or (2) does not affect the title to securities.

• Marginal note:Meaning of “put” and “call”

  (6) In this Act, a “put option” or “put” is an option made out to bearer, or otherwise made or intended to be transferable, to deliver a specified number or amount of securities at a specified price within a specified time; and a “call option” or “call” is an option made out to bearer, or otherwise made or intended to be transferable, to demand delivery of a specified number or amount of securities at a specified price within a specified time but does not include an option to purchase or otherwise acquire securities that are to be issued by the company that issues the option.

Marginal note:Consideration for fully paid shares to be cash or fair equivalent of cash

• 101 (1) The directors of a public company shall not authorize the issue and allotment as fully paid shares in the capital stock of the company having a nominal or par value, except for a consideration payable in cash to the total nominal amount of the shares so issued, or for such consideration payable in property or services as the directors may determine by express resolution to be in all the circumstances of the transaction the fair equivalent of each to the total nominal amount of the shares proposed to be issued; and the directors may apply to a judge for a declaratory order with relation to the consideration for the last-mentioned shares in like manner and with like effect in all respects as provided in and by subsection 13(15).

• Marginal note:Liability of directors

  (2) Subject as hereinafter provided, every director of a public company who is a party to authorizing the issue and allotment as fully paid of any shares of the capital stock of the company having a nominal or par value is liable, jointly and severally with his co-directors, at the suit of any director, shareholder or creditor of the company, to make good to the company the amount by which the consideration actually received by the company for any shares so issued and allotted as aforesaid is found by the court, after full inquiry into the circumstances of the transaction, to be less than the fair equivalent of the cash that the company ought to have received for such shares if they had been issued and allotted for cash if the resolution referred to in subsection 13(15) has not been passed or if it is proved, as to any such first-mentioned director, that such director

  • (a) had knowledge that the consideration so received by the company was not the fair equivalent of the cash that the company ought to have received if the shares had been issued and allotted for cash, or

  • (b) failed to take reasonable steps to ascertain whether such consideration so received by the company was in fact the fair equivalent as aforesaid.

• Marginal note:Restrictions on right to sue

  (3) No suit shall be commenced against the directors of a public company or any of them under the authority of subsection (2) by any creditor, director or shareholder of the company without the consent in writing of the Minister; and no such suit shall be commenced by any creditor of the company until an execution at the suit of such creditor against the company has been returned unsatisfied in whole or in part; and no such suit shall be commenced after the expiration of three years from the date of the allotment of such shares.

• Marginal note:Mining companies excepted

  (4) This section does not apply to any mining company, that is to say, to any company whose principal objects are the exploration, development or operation of mining-properties and which, if it has commenced actual operations, is carrying out such objects as its principal business; and for the purposes of this subsection “mining-properties” includes mines, mining deposits, mining rights, metalliferous lands, mining claims or any interest therein including any option or licence in connection therewith.

Meetings of Shareholders

Marginal note:Annual meeting

• 102 (1) An annual meeting of the shareholders of the company shall be held at some date not later than eighteen months after the incorporation of the company and subsequently once at least in every calendar year and not more than fifteen months after the holding of the last preceding annual meeting.

• Marginal note:In case of default

  (2) Where default is made in holding any annual meeting as provided under subsection (1), the court in the province in which the head office of the company is situated may, on the application of any shareholder of the company, call or direct the calling of an annual meeting of the shareholders.

Marginal note:Special general meetings

• 103 (1) The directors of a company shall, on the requisition of shareholders holding at the date of the deposit of the requisition not less than one-tenth of the issued shares of the company of the class or classes that, at the date of the deposit, carry the right of voting at the meeting to be called pursuant to such requisition, forthwith proceed duly to call a special general meeting of the shareholders.

• Marginal note:Contents of requisition

  (2) The requisition shall state the general nature of the business to be transacted at the meeting and shall be signed by the requisitionists and deposited at the head office of the company and may consist of several documents in like form, each signed by one or more requisitionists.

• Marginal note:When requisitionists may call meeting

  (3) Where the directors do not within twenty-one days from the date of the deposit of the requisition proceed duly to call such meeting, the requisitionists, or any of them representing more than one-half of the total voting rights of all of them, may themselves call such meeting, but any meeting so called shall not be held after the expiration of three months from the said date.

• Marginal note:How called

  (4) A meeting called under this section by the requisitionists shall be called in the same manner as nearly as possible as that in which meetings are to be called pursuant to the by-laws.

• Marginal note:Expenses

  (5) Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to call such meeting shall be repaid to the requisitionists by the company, and any sums so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.

• Marginal note:Meetings called by directors

  (6) The directors may at any time of their own motion call a special general meeting of the shareholders for the transaction of any business of which the general nature is specified in the notice of the meeting.

Marginal note:One share — one vote

104 Subject to section 105, and in the absence of other provisions in that behalf in the letters patent or supplementary letters patent, at all meetings of shareholders every shareholder is entitled to give one vote for each share then held by him, but no shareholder in arrears in respect of any call is entitled to vote at any meeting.

Marginal note:Record date

• 105 (1) The directors of a company may, by resolution, fix a record date for determining the shareholders who will be entitled to vote at meetings of shareholders, which record date shall not be more than thirty days before the date of the meeting of shareholders.

• Marginal note:Notice of record date

  (2) A notice of the record date fixed under subsection (1) shall be given, at least fourteen days before the record date so fixed,

  • (a) to each shareholder, in the manner required by subsection (3) for the giving of the notice of the time and place for holding a meeting of shareholders, and

  • (b) by advertisement in a daily newspaper in the location where the company has its head office and each location in Canada where it has a transfer agent, and

  • (c) to each recognized stock exchange in Canada on which the shares of the company are listed.

• Marginal note:Notice of meeting

  (3) Notice of the time and place for holding any meeting of shareholders shall be given by sending the notice to each shareholder entitled to vote at the meeting through the post, in a prepaid wrapper or letter, not less than fourteen days or more than sixty days before the date of the meeting, to his latest address as shown on the books of the company.

• Marginal note:Notice not required to be given

  (4) Notice of the time and place for holding any meeting of shareholders need not be given

  • (a) to persons who were not registered on the books of the company on the record date fixed under subsection (1); or

  • (b) if all the shareholders of the company entitled to vote at the meeting waive notice of the meeting in writing.

• Marginal note:Failure to receive notice in other cases

  (5) Where a company has not fixed a record date under subsection (1), the failure of any shareholder of the company to receive a notice of the time and place for holding a meeting of shareholders of the company does not deprive the shareholder of a vote at the meeting if the shareholder is registered on the books of the company at least forty-eight hours, excluding Saturdays and holidays, before the time set for the meeting.

• Marginal note:Determination by majority vote

  (6) In the absence of other provisions in that behalf in this Act, the letters patent or supplementary letters patent, all questions proposed for the consideration of the shareholders at any meeting of shareholders shall be determined by the majority of votes, and the chairman presiding at any such meeting shall have the casting vote in case of an equality of votes.

• Marginal note:Application

  (7) This section applies notwithstanding any provision of the letters patent or supplementary letters patent of the company except in respect of a meeting of a company for which a notice of the time and place thereof has been given to the shareholders before or on the date this section comes into force.

Marginal note:Power of court to order meeting to be called

106 Where for any reason it is impracticable to call a meeting of shareholders of the company in any manner in which meetings of shareholders may be called, or to conduct the meeting in manner prescribed by the letters patent, supplementary letters patent, the by-laws or this Part, the court in the province in which the head office of the company is situated, may, either of its own motion, or on the application of any director or any shareholder who would be entitled to vote at the meeting, order a meeting to be called, held and conducted in such manner as the court thinks fit and, where any such order is made, may give such ancillary or consequential directions as it thinks expedient; and any meeting called, held and conducted in accordance with any such order shall for all purposes be deemed to be a meeting of shareholders of the company duly called, held and conducted.

Marginal note:Authorized representatives at meeting

• 107 (1) Any company or corporation, whether a company to which this Part applies or not, may

  • (a) if it is a shareholder of the company, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of the shareholders of the company or at any meeting of any class of shareholders of the company, and

  • (b) if it is a creditor (including a holder of debentures) of the company, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of any creditors of the company, secured or unsecured or any class thereof as the case may be.

• Marginal note:Powers of representative

  (2) A person authorized under this section to act as a representative is entitled to exercise the same powers on behalf of the company or corporation that he represents as that company or corporation could exercise if it were an individual shareholder, or creditor secured or unsecured as the case may be of that other company.

Marginal note:Mortgagor may vote

• 108 (1) Notwithstanding that a mortgagee of any share in the company, or other person holding such share as collateral security, is entered on the books of the company as the holder of that share, if the mortgagee or other person is described in the books of the company as representing a named mortgagor or person giving the collateral security, the mortgagor or other person giving such collateral security, is entitled to vote in respect of that share, in person or by proxy, at any meeting of shareholders of the company at which the share carries voting rights.

• Marginal note:Person entered as holder of share entitled to vote

  (2) Where a person is entered on the books of a company as the holder of any share in the company, then, notwithstanding that he is a mortgagee of the share or holds the share as collateral security, unless he is described in the books of the company as representing a named mortgagor or person giving the collateral security, the person so entered on the books of the company as the holder of that share is entitled to vote in respect of the share, in person or by proxy, at any meeting of shareholders of the company at which the share carries voting rights.

Proxies and Proxy Solicitation

Marginal note:Definitions

108.1 In this section and in sections 108.2 to 108.8,

form of proxy

formule de procuration

form of proxy means a written or printed form that, upon completion and execution by or on behalf of a shareholder, becomes a proxy; (formule de procuration)

information circular

circulaire d’information

information circular means the circular referred to in paragraph 108.4(1)(a); (circulaire d’information)

proxy

procuration

proxy means a completed and executed form of proxy by means of which a shareholder has appointed a person as his nominee to attend and act for him and on his behalf at a meeting of shareholders; (procuration)

registrant

inscrit

registrant means a person registered or required to be registered to trade in corporate securities under the laws of any jurisdiction; (inscrit)

solicit or solicitation

solliciter ou sollicitation

solicit or solicitation includes

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

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

• (c) the sending or delivery 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

• (d) the sending of a form of proxy to a shareholder pursuant to section 108.3,

but does not include

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

• (f) the performance by any person of administrative acts or professional services on behalf of a person soliciting a proxy; (solliciter ou sollicitation)

solicitation by or on behalf of the management of a company

sollicitation par ou pour la direction d’une compagnie

solicitation by or on behalf of the management of a company means any solicitation by any person pursuant to a resolution of or on the instructions of or with the acquiescence of the board of directors of the company or of the executive committee of the board of, directors thereof. (sollicitation par ou pour la direction d’une compagnie)

Marginal note:Entitlement to proxy

• 108.2 (1) Every shareholder entitled to vote in person or by proxy at a meeting of shareholders may, by means of a proxy, appoint a person, who need not be a shareholder, as his nominee to attend and act at the meeting in the manner, to the extent and with the power conferred by the proxy.

• Marginal note:Execution of proxy

  (2) A proxy shall be executed by the shareholder or his attorney authorized in writing or, if the shareholder is a corporation, under its corporate seal or by an officer or attorney thereof duly authorized.

• Marginal note:Validity of proxy

  (3) A proxy ceases to be valid one year from its date but no proxy shall confer authority to vote at any meeting other than the meeting in respect of which it is given or any adjournment thereof.

• Marginal note:Contents of proxy

  (4) In addition to the requirements, where applicable, of section 108.6, a proxy shall contain the date thereof and state the appointment and name of the nominee and may contain a revocation of a former proxy and restrictions, limitations or instructions as to the manner in which the shares in respect of which the proxy is given are to be voted or that may be necessary to comply with the laws of any jurisdiction in which the shares of the company are held or listed on a stock exchange or with a restriction or limitation as to the number of shares in respect of which the proxy is given.

• Marginal note:Revocation of proxy

  (5) In addition to revocation in any other manner permitted by law, a proxy may be revoked by instrument in writing executed by the shareholder or by his attorney authorized in writing or, if the shareholder is a corporation, under its corporate seal or by an officer or attorney thereof duly authorized, and deposited either at the head office of the company at any time up to and including the last business day preceding the day of the meeting, or any adjournment thereof, at which the proxy is to be used or with the chairman of such meeting on the day of the meeting, or adjournment thereof, and upon either of such deposits the proxy is revoked.

• Marginal note:Time for deposit of proxies

  (6) The directors may by resolution fix a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding any meeting or adjourned meeting of shareholders before which time proxies to be used at that meeting must be deposited with the company or an agent thereof, and any period of time so fixed shall be specified in the notice calling the meeting or in the information circular or explanatory memorandum relating thereto.

Marginal note:Proxy form to be sent to shareholders

• 108.3 (1) Subject to section 108.5, the management of a company shall, concurrently with or prior to giving notice of a meeting of shareholders of the company, send by prepaid mail to each shareholder who is entitled to a notice of the meeting at his latest address as shown on the books of the company a form of proxy that complies with section 108.6 for use at such meeting.

• Marginal note:Offence

  (2) If the management of a company fails to comply with subsection (1), the company is guilty of an offence and is liable on summary conviction to a fine of not more than one thousand dollars, and every director or officer of the company who knowingly authorized, permitted or acquiesced in such failure is also guilty of an offence and is liable on summary conviction to a like fine.

Marginal note:Soliciting proxies

• 108.4 (1) Subject to subsection (2) and section 108.5, no person shall solicit proxies unless,

  • (a) in the case of solicitation by or on behalf of the management of a company, an information circular as prescribed by regulation, either as an appendix to or as a separate document accompanying the notice of the meeting, is sent by prepaid mail to each shareholder of the company whose proxy is solicited at his latest address as shown on the books of the company; or

  • (b) in the case of any other solicitation, the person making the solicitation, concurrently with or prior thereto, delivers or sends to each shareholder of the company whose proxy is solicited a written explanation of the purposes of the solicitation, hereinafter referred to as an “explanatory memorandum”, in such form and containing such information as may be prescribed by regulation.

• Marginal note:Application of subsection (1)

  (2) Subsection (1) does not apply to

  • (a) any solicitation, otherwise than by or on behalf of the management of a company, where the total number of shareholders whose proxies are solicited is not more than fifteen, two or more persons who are the joint registered owners of one or more shares being counted as one shareholder;

  • (b) any solicitation by a person made pursuant to section 108.7; and

  • (c) any solicitation by a person in respect of shares of which he is the beneficial owner.

• Marginal note:Sending solicitation

  (3) In any solicitation to which subsection (1) applies, the person making the solicitation shall, concurrently with the delivery or sending of an information circular or explanatory memorandum, send by mail a copy of the information circular or explanatory memorandum to the Department of Consumer and Corporate Affairs.

• Marginal note:Inspection of solicitations

  (4) Any documents sent by mail under subsection (3) shall be filed in the Department of Consumer and Corporate Affairs and, upon payment of the fee prescribed therefor by the regulations, be open to public inspection during ordinary business hours, and the Minister may provide copies of any such documents upon payment of the fee prescribed therefor by the regulations.

• Marginal note:Offence

  (5) A person who wilfully fails to comply with subsection (1) or (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both, and where that person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in such failure is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Idem

  (6) A person who effects a solicitation to which subsection (1) applies by means of a form of proxy, information circular, explanatory memorandum or other communication that contains an untrue statement of a material fact or omits to state a material fact necessary in order to make any statement contained therein not misleading in the light of the circumstances in which it was made is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both, and, where such person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in the offence is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Saving

  (7) No person is guilty of an offence under subsection (6) in respect of any untrue statement of a material fact or omission to state a material fact in a form of proxy, information circular, explanatory memorandum or other communication, if the untruth of such statement or the fact of such omission was not known to the person who effected the solicitation and in the exercise of reasonable diligence could not have been known to such person.

Marginal note:Non-application of 108.3 and 108.4(1)

• 108.5 (1) Section 108.3 and subsection 108.4(1) do not apply to a private company or to a public company that has fewer than fifteen shareholders, two or more persons who are the joint registered owners of one or more shares being counted as one shareholder.

• Marginal note:Exemption orders

  (2) Upon the application of any interested person, the Minister may, if satisfied that in the circumstances of the particular case there is adequate justification for so doing, make an order, on such terms and conditions as seem just and reasonable to him, exempting, in whole or in part, any person from the requirements of section 108.3 or from the requirements of subsection 108.4(1).

• Marginal note:Publication

  (3) The Minister shall cause to be set out in the periodical mentioned in section 100.2 every application for an exemption under this section and its disposition.

Marginal note:Form of proxy

• 108.6 (1) Where section 108.3 or 108.4 is applicable to a solicitation of proxies, the form of proxy sent to a shareholder shall

  • (a) indicate in bold-face type whether the proxy is solicited by or on behalf of the management of the company and provide a specifically designated blank space for dating the form of proxy;

  • (b) indicate in bold-face type that the shareholder has the right to appoint a person to attend and act for him and on his behalf at the meeting other than the person, if any, designated in the form of proxy, and shall contain instructions as to the manner in which the shareholder may exercise such right;

  • (c) if the form of proxy contains a designation of a named person as nominee, provide means whereby the shareholder may designate in the form of proxy some other person as his nominee for the purpose of subsection 108.2(1);

  • (d) provide means whereby the person whose proxy is solicited is afforded an opportunity to specify that the shares registered in his name shall be voted by the nominee in favour of or against, in accordance with such person’s choice, each matter or group of related matters identified therein or in the information circular or explanatory memorandum as intended to be acted upon, other than the appointment of auditors, the fixing of their remuneration and the appointment of directors; but a proxy may confer authority with respect to matters for which a choice is not so specified by such means if the form of proxy or the information circular or explanatory memorandum states in bold-face type how it is intended to vote the shares represented by the proxy in each such case; and

  • (e) provide means whereby the person whose proxy is solicited is afforded an opportunity to specify that the shares registered in his name shall be voted by the nominee or withheld from voting in the election of the directors and auditors; but no proxy shall confer authority to vote for the election of any person as a director or auditor of the company unless abona fide proposed nominee for such election is named in the information circular, explanatory memorandum or in any proposal under section 108.8.

• Marginal note:Discretionary authority

  (2) A proxy may confer discretionary authority with respect to amendments or variations to matters identified in the notice of meeting, or other matters that may properly come before the meeting, if

  • (a) the person by whom or on whose behalf the solicitation is made is not aware a reasonable time prior to the time the solicitation is made that any such amendments, variations or other matters are to be presented for action at the meeting, and

  • (b) a specific statement is made in the information circular, explanatory memorandum or in the form of proxy that the proxy is conferring such discretionary authority.

• Marginal note:Voting shares as specified

  (3) The information circular, explanatory memorandum or form of proxy shall state that the shares represented by the proxy will be voted or withheld from voting on any ballot that may be called for and that, where the person whose proxy is solicited specifies a choice with respect to any matter to be acted upon pursuant to paragraph (1)(d) or (e), the shares shall be voted in accordance with the specifications so made.

• Marginal note:Offence

  (4) Where a person who has accepted a designation as a nominee in a proxy wilfully fails to comply with the directions of a shareholder under this section on any ballot that is called for he is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Presumption

  (5) A person who has been designated as a nominee in a proxy as the result of his soliciting proxies shall be deemed to have accepted such designation for the purposes of subsection (4).

Marginal note:Voting by registrant

• 108.7 (1) In the absence of written instructions to the contrary from the beneficial owner, and subject to subsection (4), shares of a company that are registered in the name of a registrant or in the name of his nominee that are not beneficially owned by the registrant shall not be voted at any meeting of shareholders of the company unless the registrant forthwith after receipt of the material referred to in paragraph (a) sends or delivers to each person who is the beneficial owner of the shares,

  • (a) a copy of the notice of the meeting, the financial statements, the information circular, explanatory memorandum and any other material, other than the form of proxy, sent to shareholders by or on behalf of any person for use in connection with the meeting, and

  • (b) a written request for voting instructions from the beneficial owner which shall state that, if voting instructions are not received at least twenty-four hours, excluding Saturdays and holidays, prior to the expiry of the time within which proxies may be deposited with the company as specified in the notice calling the meeting or otherwise or, if not so specified, twenty-four hours, excluding Saturdays and holidays, prior to the time fixed for holding the meeting, a proxy in respect of those shares may be given or the shares otherwise voted at the meeting at the discretion of the registrant.

• Marginal note:Where beneficial owner not known

  (2) A registrant shall not vote or cause to be voted shares registered in his name or in the name of his nominee that he does not beneficially own if he does not know who is the beneficial owner of the shares.

• Marginal note:Copies of material

  (3) A company shall, at the request of a registrant, forthwith furnish to the registrant at the company’s expense the requisite number of copies of the material referred to in paragraph (1)(a).

• Marginal note:Registrant to vote as instructed

  (4) A registrant shall vote or give a proxy requiring a nominee to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.

• Marginal note:Vote by proxy of beneficial owner

  (5) A registrant shall, if requested by a beneficial owner, give to the beneficial owner or his nominee a proxy enabling the beneficial owner or his nominee to vote any shares referred to in subsection (1).

• Marginal note:Validity not affected

  (6) The failure of a registrant to comply with this section does not affect the validity of any meeting of share holders or any proceedings taken thereat.

• Marginal note:Saving

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

• Marginal note:Offence

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

Marginal note:Proposal by shareholder

• 108.8 (1) Subject to subsection (2), any shareholder entitled to vote at a meeting of shareholders of the company may submit to the company, within the time hereinafter specified, a notice of any matter that he proposes to raise at the meeting, hereinafter called a “proposal”, together with the statement referred to in subsection (4) if any.

• Marginal note:Proposal to be set out in circulars, etc.

  (2) The company, if it makes a solicitation of proxies to which section 108.4 applies, shall set forth the proposal in its information circular, identify it in the form of proxy, and provide means by which shareholders can make the specifications provided for in paragraphs 108.6(1)(d) and (e).

• Marginal note:Exception

  (3) A company shall not be required to comply with subsection (2) unless the proposal is submitted to the company not less than ninety days before the last day on which notice of the meeting must be given.

• Marginal note:Statement of shareholder

  (4) If the directors of the company oppose the proposal, the company shall include in the information circular a statement of the shareholder, in not more than two hundred words, in support of the proposal, which statement shall be accompanied by or contain the name and address of and the number of shares owned by the shareholder.

• Marginal note:Nominations in proposal

  (5) A proposal may include nominations for a director or directors of a company if the proposal is submitted by at least ten shareholders of the company holding, at the date the proposal is submitted to the company, not less than one-fifth of the issued shares of the company carrying the right to vote at the meeting at which the proposal is to be presented.

• Marginal note:Omitting proposal

  (6) Notwithstanding subsections (1) to (5), the company may omit a proposal and any statement in support thereof from its information circular and form of proxy, other than a proposal pursuant to subsection (5) if

  • (a) it clearly appears that the proposal is submitted by the shareholder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the company or its directors, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes;

  • (b) the proposal as submitted is not a proper subject for action by shareholders;

  • (c) the proposal consists of a recommendation or request that the directors of the company take action with respect to a matter relating to the conduct of the ordinary business operations of the company; or

  • (d) the company has at the shareholder’s request included a proposal in its information circular relating to either of the last two annual meetings of shareholders or any special meeting held subsequent to the earlier of such two annual meetings and the shareholder has failed without good cause to present the proposal, in person or by proxy, at the meeting.

• Marginal note:Idem

  (7) Notwithstanding subsections (1) to (4), where substantially the same proposal has previously been submitted to shareholders in the information circular and form of proxy relating to any annual or special meeting of shareholders held within the preceding two calendar years, the proposal may be omitted from the information circular.

• Marginal note:Notifying shareholder

  (8) Whenever a company asserts that a proposal and any statement in support thereof may properly be omitted from its information circular and form of proxy, the company shall, within fourteen days after its receipt of the proposal, notify the shareholder submitting the proposal of its intention to omit the proposal from the information circular and form of proxy and shall forward to him a statement of the reasons why the company deems the omission of the proposal to be proper.

• Marginal note:Opinion of counsel

  (9) Whenever, pursuant to subsection (8), a company makes an assertion based on matters of law, the directors and officers of the company may, subject to section 108.9, rely on an opinion of counsel in making such an assertion.

• Marginal note:Deposit for further disposal

  (10) A shareholder who, within the five calendar years preceding the meeting at which any further proposal of his is to be presented, has submitted two or more proposals that have not received the favourable vote of a majority of the votes cast in regard thereto, shall be required to deposit with any such further proposal a sum reasonably sufficient to meet the expenses of the company in submitting any such further proposal; and

  • (a) if such further proposal receives the favourable vote of a majority of the votes cast in regard thereto at the meeting of shareholders at which it is presented, the sum deposited shall be returned to the person who deposited the same; or

  • (b) if such further proposal does not receive the favourable vote of a majority of the votes cast in regard thereto at the meeting of shareholders at which it is presented, the sum deposited shall be used by the company to meet its expenses in connection with such proposal, and the surplus, if any, of the sum deposited shall be returned to the person who made the deposit.

Marginal note:Order of compliance

• 108.9 (1) Whenever it appears to the Minister that any person has failed to comply with sections 105 and 108.1 to 108.8, the Minister may apply to the chief justice or acting chief justice of the court of the province in which the head office of the company is situated or a judge of such court designated by either of them, for an order requiring such person to comply therewith and for such other relevant order as to the judge seems fit.

• Marginal note:Appeal

  (2) An interested person may appeal to the appellate court of the province in which the head office of the company is situated from any order made under subsection (1).

Books

Marginal note:Contents of books

• 109 (1) The company shall cause a book or books to be kept by the secretary, or some other officer specially charged with that duty, wherein shall be kept recorded

  • (a) a copy of the letters patent, all by-laws of the company and any supplementary letters patent issued to the company and a copy of the memorandum of agreement of the company, if any;

  • (b) the names, alphabetically arranged of all persons who are and have been shareholders of the company;

  • (c) the address and calling of every such person, while such shareholder, as far as can be ascertained;

  • (d) the names, addresses and callings of all persons who are or have been directors of the company, with the several dates at which each became or ceased to be such director;

  • (e) the number of shares of each class held by each shareholder; and

  • (f) the amounts paid in and remaining unpaid, respectively, on the shares of each shareholder.

• Marginal note:Where books are to be kept

  (2) The book or books of the company shall be kept at the head office of the company, except that where the register of transfers and the books in which the particulars mentioned in paragraphs (1)(b), (c), (e) and (f) are recorded are kept by an agent appointed by the company for the purpose of recording the transfer of its shares and who has an established place of business in Canada at which the right of inspection conferred by section 111 can be exercised, such last-mentioned books need not be kept at the head office of the company but may be kept at the place of business of such agent in Canada where the register of transfers is kept.

Marginal note:Register of transfers

• 110 (1) The company shall cause the secretary or such other officer or officers as may be specially charged with that duty, or such other agent or agents as may from time to time be appointed for that purpose by the company, to keep, in Canada, a register of transfers, in which shall be recorded particulars of every transfer of shares in the capital of the company entered on such register.

• Marginal note:Where registers to be kept

  (2) Unless otherwise provided in the letters patent, supplementary letters patent or bylaws of the company, the register of transfers may be kept at the head office of the company or at such other office or place in Canada as may from time to time be appointed by resolution of the directors; and one or more branch registers of transfers may be kept at such office or offices of the company or other place or places within Canada or elsewhere as may from time to time be appointed by resolution of the directors.

• Marginal note:Entries of transfers

  (3) Entry of the transfer of any share in the capital of the company in the register of transfers or a branch register of transfers, whether kept at the head office of the company or elsewhere, is, for all purposes of this Part, a complete and valid transfer.

• Marginal note:In branch registers

  (4) In each branch register of transfers shall be recorded particulars of every transfer of shares in the capital of the company entered on such branch register of transfers.

• Marginal note:Copy of particulars

  (5) A book or books shall be kept at the head office of the company or at the place within Canada where the register of transfers is kept, in which shall be recorded a copy of particulars of every transfer of shares in the capital of the company entered on every branch register of transfers.

• (6) [Repealed, R.S., 1970, c. 10(1st Supp.), s. 10]

Marginal note:Books to be open for inspection

• 111 (1) The books mentioned in section 109 and the register of transfers and branch registers of transfers and the books mentioned in section 110 during reasonable business hours of every day, except Sundays and holidays, shall, at the place or places where they are respectively kept as authorized by said sections 109 and 110, be open to the inspection of shareholders and creditors of the company and their personal representatives and of any judgment creditor of a shareholder, any of whom may make extracts therefrom.

• Marginal note:Refusing to allow inspection

  (2) Any director, officer or employee of a company including any person acting as agent for the purpose of recording transfers of the company’s shares, who refuses or fails to permit the exercise of the right of inspection and making extracts conferred by subsection (1) is liable to a penalty of two hundred dollars.

Marginal note:List of shareholders

• 111.1 (1) Any person, upon payment of the costs thereof and upon filing with the company or its transfer agent such declaration as may be prescribed by regulation, is entitled to obtain from a company, other than a private company, or its transfer agent within ten days from the filing of such declaration a list setting out the names of all persons who are shareholders of the company, the number of shares owned by each such person and the address of each such person as shown on the books of the company made up to a date not more than ten days prior to the date of filing the declaration.

• Marginal note:Declaration of company

  (2) Where the applicant is a corporation, the prescribed declaration shall be made by the president or other officer authorized by resolution of the board of directors thereof.

• Marginal note:Offence and punishment

  (3) Every person who, for the purpose of communicating to any shareholders any information relating to any goods, services, publications or securities except securities of the company, and except securities of any other company offered in exchange for the securities of the company pursuant to a take-over bid made pursuant to sections 135.1 to 135.93 or on an amalgamation pursuant to section 137, uses a list of shareholders obtained under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both and where that person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in the offence is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Idem

  (4) Every company or transfer agent that fails to furnish a list in accordance with subsection (1) when so required is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars and every director or officer of such company or transfer agent who knowingly authorized, permitted or acquiesced in the offence is also guilty of an offence and is liable on summary conviction to a like fine, or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Idem

  (5) Every person who offers for sale, sells, purchases or otherwise traffics in a list or a copy of a list of all or any of the shareholders of a company is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both, and where that person is a corporation, every director or officer of the corporation who knowingly authorized, permitted or acquiesced in the offence is also guilty of an offence and is liable on summary conviction to a like penalty.

Marginal note:Minutes or proceedings

• 112 (1) Every company shall cause minutes of all proceedings at meetings of the shareholders and of the directors and of any executive committee to be entered in books kept for that purpose.

• Marginal note:Minutes to be evidence

  (2) Any such minutes if purporting to be signed by the chairman of the meeting at which the proceedings were had, or by the chairman of the next succeeding meeting are evidence of the proceedings.

• Marginal note:Meeting deemed duly called, etc.

  (3) Where minutes, in accordance with this section, have been made of the proceedings of any meeting of the shareholders or of the directors or executive committee, then, until the contrary is proved, the meeting shall be deemed to have been duly called and held and all proceedings had thereat to have been duly had and all appointments of directors, managers or other officers shall be deemed to have been duly made.

Marginal note:Neglect to keep books

113 Every company that neglects to keep any book or books required by this Part to be kept by the company, is guilty of an offence and liable on summary conviction to a penalty not exceeding twenty dollars for each day that such neglect continues.

114 [Repealed, 1986, c. 26, s. 51]

Marginal note:Investigating ownership of securities

• 114.1 (1) Where it appears to the Minister that, for the purposes of sections 100 to 100.6, and sections 135.1 to 135.93, there is reason to inquire into the ownership of any securities of a company, the Minister or his authorized representative may require any person whom the Minister has reasonable cause to believe

  • (a) is interested or has been interested in those securities, or

  • (b) is acting or has acted in relation to those securities as the agent or financial or investment adviser of someone interested therein,

  to give him any information that such person has or can reasonably be expected to obtain as to the present and past interests in those securities and the names and addresses of the persons interested and of any persons who act or have acted on their behalf in relation to the securities.

• Marginal note:Presumption of interest

  (2) For the purposes of subsection (1), a person shall be deemed to have an interest in any securities if he has any right to acquire or dispose of them, or any interest therein, or to vote in respect thereof, or if his consent is necessary for the exercise of any of the rights of other persons interested therein, or if other persons interested therein can be required or are accustomed to exercise their rights in accordance with his instructions.

• Marginal note:Publication or report

  (3) The Minister may

  • (a) forward to such person or persons as he thinks fit a copy of such part of any report made to him that relates to the ownership of any securities of a company and may cause any such report or any part thereof to be published;

  • (b) divulge as he thinks fit any information relating to the ownership of any securities of a company obtained by him as a result of his investigation and may cause any such information to be published; and

  • (c) cause to be published monthly in the periodical referred to in section 100.2, such part of such report as relates to the ownership of any securities of the company.

• Marginal note:Offence and punishment

  (4) Any person who wilfully fails to give any information required of him under this section, or who in giving any such information knowingly makes any statement that is false in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

Marginal note:Where default occurs

• 114.2 (1) Where pursuant to this Act a company or any officer thereof is required to file or deposit with the Department of Consumer and Corporate Affairs any report, return, record, bylaw, statement or other document, or any copy thereof, and the company or officer defaults in doing so, the Minister may

  • (a) cause an inspection to be made of the affairs and management of the company by a person authorized by him in that behalf to determine the reasons for such default, and to report thereon to the Minister, or

  • (b) by notice require any company or any director thereof to make a return upon any subject connected with its default within the time specified in the notice.

• Marginal note:Inspections

  (2) Subject to subsection (2.1), any person (in this section called an “inspector”) authorized pursuant to subsection (1) to carry out an inspection pursuant to this section may at any reasonable time enter the premises of any company in respect of whose affairs and management an inspection has been authorized pursuant to subsection (1) and may examine any thing on the premises and may, for further examination, copy, or have a copy made of, any book or paper, or other document or record that in the opinion of the inspector is relevant to his inspection.

• Marginal note:Authority to issue warrant

  (2.1) Where on ex parte application a justice of the peace is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises referred to in subsection (2) any evidence relevant to the matters being investigated under this section, he may issue a warrant under his hand authorizing the inspector named therein to enter those premises and to exercise any of the other powers referred to in subsection (2), subject to such conditions as may be specified in the warrant.

• Marginal note:Use of force

  (2.2) In executing a warrant issued under subsection (2.1), an inspector shall not use force unless he is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

• Marginal note:Where warrant not necessary

  (2.3) An inspector may exercise any of the powers referred to in subsection (2) without a warrant issued under subsection (2.1) if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.

• Marginal note:Exigent circumstances

  (2.4) For the purposes of subsection (2.3), exigent circumstances include circumstances in which the delay necessary to obtain a warrant under subsection (2.1) would result in danger to human life or safety or the loss or destruction of evidence.

• Marginal note:Duty to give assistance

  (2.5) The person in charge of any premises entered pursuant to this section and all directors, officers, agents and employees of any company investigated pursuant to this section shall give all reasonable assistance to enable an inspector to carry out his inspection.

• Marginal note:Producing authority

  (3) On entering any premises pursuant to this section, an inspector shall, if so requested, produce the authorization of the Minister to the person in charge thereof.

• Marginal note:Offence and punishment

  (4) A person who

  • (a) fails to permit an inspector to enter upon any premises or to make any inspection in pursuance of his duties under this section, or

  • (b) in any manner obstructs an inspector in the execution of his duties under this section,

  is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Idem

  (5) Every director and officer of the company who knowingly authorizes or permits a default in making a return required under paragraph (1)(b) is guilty of an offence and is liable on summary conviction to a fine not exceeding fifty dollars for every day during which the default continues.

Marginal note:Compelling evidence

• 114.3 (1) No person shall be excused from attending and giving evidence and producing books, papers, documents or records in accordance with section 114.2 on the grounds that the oral evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no such oral evidence so required shall be used or is receivable against him in any criminal proceedings thereafter instituted against him, other than a prosecution for perjury in giving the evidence.

• Marginal note:Solicitor’s communications

  (2) Nothing in section 114.2 or this section compels the production by a solicitor of a document containing a privileged communication made by or to him in that capacity or authorizes the taking of possession of any document in his possession without the consent of his client or an order of a court.

Marginal note:Expenses of investigations

• 114.4 (1) The expenses of, and incidental to, an investigation, inquiry or inspection under section 114, 114.1 or 114.2 shall be defrayed out of moneys provided by Parliament therefor, but the following persons are, to the extent mentioned, liable to pay those expenses as a debt owing to Her Majesty in right of Canada:

  • (a) a person who is convicted on a prosecution arising out of facts disclosed by an investigation under section 114 or who is ordered to restore property or pay damages or compensation in proceedings brought under subsection 114(27) may in the same proceeding be ordered to pay to the Receiver General such expenses to such extent as may be specified in the order;

  • (b) a company in whose name proceedings are brought under subsection 114(27) is liable to Her Majesty in right of Canada for the amount or value of any sums or property recovered by it as a result of those proceedings, and the expenses are a first charge on such sums or property.

• Marginal note:Idem

  (2) For the purposes of this section, any costs or expenses incurred by the Minister in connection with proceedings brought under subsection 114(27) shall be treated as expenses of the investigation giving rise to the proceedings.

• Marginal note:Security for costs

  (3) Upon the recommendation of the Minister, the Commission may require any or all shareholders applying for an investigation to give such security as the Commission deems appropriate for the payment of the costs of the investigation and any resulting inquiry and inspection.

• Marginal note:Order to pay costs

  (4) Upon the termination of the investigation, the Commission may order that any security given pursuant to subsection (3) be returned to the applicant but if the Commission holds that the application was vexatious or malicious it may

  • (a) order the applicant to pay to the Receiver General any or all of the costs of such investigation and any resulting inquiry or inspection,

  • (b) order the applicant to pay to the company any or all of the costs that it has incurred in connection with the investigation and any resulting inquiry or inspection, and

  • (c) order that any security given pursuant to subsection (3) be applied toward the payment of the costs referred to in paragraphs (a) and (b), in that order, and that the residue, if any, of such security not so applied, be returned to the applicant.

• Marginal note:Debt to Her Majesty

  (5) Any costs ordered by the Commission to be paid to the Receiver General pursuant to subsection (4) shall be a debt owing to Her Majesty in right of Canada.

Marginal note:Power to appoint inspectors

• 115 (1) A company may by resolution of its shareholders at any annual or special general meeting called for that purpose appoint inspectors to investigate its affairs.

• Marginal note:Powers and duties of inspectors

  (2) Inspectors so appointed have the same powers and duties as inspectors appointed by the Minister, except that, instead of reporting to the Minister, they shall report in such manner and to such persons as the shareholders by resolution may direct.

• Marginal note:Refusing to produce books or answer questions

  (3) Officers and agents of the company shall incur the like penalties in ease of refusal to produce any book or document required to be produced to inspectors so appointed, or to answer any question, as they would have incurred if the inspectors had been appointed by the Minister.

Marginal note:Report of inspectors to be evidence

116 A copy of the report of any inspectors appointed under this Act, authenticated by the seal of the company whose affairs they have investigated or by the seal of the Minister, is admissible in any legal proceeding as evidence of the opinion of the inspectors in relation to any matter contained in the report.

Accounts and Audit

Marginal note:Books of account and accounting records

• 117 (1) Every company shall cause to be kept proper accounting records with respect to all financial and other transactions of the company, and, without limiting the generality of the foregoing, shall cause records to be kept of

  • (a) all sums of money received and disbursed by the company and the matters in respect of which receipt and disbursement take place;

  • (b) all sales and purchases by the company;

  • (c) all assets and liability of the company; and

  • (d) all other transactions affecting the financial position of the company.

• Marginal note:Records to be kept at head office

  (2) The accounting records shall be kept at the head office of the company or at such other place in Canada as the directors think fit, and shall at all times be open to inspection by the directors.

• Marginal note:Keeping records at other offices

  (3) In case the operating accounts of the company are kept at some place outside Canada, there shall be kept at the head office of the company such comprehensive records as will enable the directors to ascertain with reasonable accuracy the financial position of the company at the end of each three months period.

Marginal note:Information for annual meeting

• 118 (1) The directors shall place before each annual meeting of shareholders

  • (a) a comparative financial statement relating separately to

    • (i) the period that began on the date of incorporation and ended not more than six months before the annual meeting, or, if the company has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, as the case may be, and

    • (ii) the period covered by the financial year next preceding the latest completed financial year, if any,

    which comparative financial statement shall be made up of

    • (iii) an income statement for each a period,

    • (iv) a statement of surplus for each period,

    • (v) a statement of source and application of funds for each period, and

    • (vi) a balance sheet as at the end of each period;

  • (b) the report of the auditor to the shareholders; and

  • (c) such further information respecting the financial position of the company as the charter or by-laws of the company require.

• Marginal note:Designations not necessary

  (2) It is not necessary to designate the statements referred to in subsection (1) as the income statement, statement of surplus, statement of source and application of funds or balance sheet.

• Marginal note:Saving

  (3) Notwithstanding paragraph (1)(a), the financial statement referred to in that paragraph may relate only to the period that ended not more than six months before the annual meeting, if the reason for the omission of the statement in respect of the period covered by the previous financial statement is set out in the financial statement to be laid before such meeting or by way of note thereto.

• Marginal note:Omitting source and application of funds

  (4) Notwithstanding subparagraph (1)(a)(v), the statement of source and application of funds may be omitted, if the reason for such omission is set out in the financial statement or by way of note thereto.

Marginal note:Exception for small private companies

118.1 With the consent in writing of all shareholders given annually a company to which paragraph 128(1)(b) does not apply may, each year, dispense with the requirements of sections 119 to 124 in respect of any particular financial statement referred to in the consent, but the financial statement shall be drawn up so as to present fairly the results of the operations of the company for the period covered by the statement.

Marginal note:Income statement

• 119 (1) Every income statement to be placed before an annual meeting of shareholders shall be drawn up to present fairly the results of the operations of the company for the period covered by the statement and shall show severally at least

  • (a) the amount of Bales or gross revenue derived from operations;

  • (b) income from investments in subsidiaries whose financial statements are not consolidated with those of the company;

  • (c) income from investments in affiliated companies other than subsidiaries;

  • (d) income from other investments;

  • (e) non-recurring profits and losses of significant amount including profits or losses on the disposal of capital assets and other items of a special nature to the extent that they are not shown separately in the statement of earned surplus;

  • (f) the provision made for depreciation, including obsolescence, and for depletion;

  • (g) amounts written off for goodwill or provided for amortization of any other intangible assets to the extent that they are not shown separately in the statement of earned surplus;

  • (h) interest on indebtedness initially incurred for a term of more than one year, including amortization of debt discount or premium and expense; and

  • (i) taxes on income imposed by any taxing authority;

  and shall show the net profit or loss for the financial period.

• Marginal note:Note on items

  (2) Notwithstanding subsection (1), an item mentioned in paragraph (f) or (g) of that subsection may be shown by way of a note to the financial statement.

Marginal note:Statement of surplus

• 120 (1) Every statement of surplus to be placed before an annual meeting of shareholders shall be drawn up to present fairly the transactions reflected in the statement and shall show severally a statement of contributed surplus and a statement of earned surplus.

• Marginal note:Contributed surplus

  (2) Every statement of contributed surplus shall be drawn up to include and show severally at least the following items:

  • (a) the balance of such surplus at the end of the preceding financial period;

  • (b) the additions to and deductions from such surplus during the financial period including

    • (i) the amount of surplus arising from the issue of shares or the reorganization of the company’s issued capital, including inter alia,

      • (A) the amount of premiums received on the issue of shares at a premium, and

      • (B) the amount of surplus realized on the purchase for cancellation of shares, and

    • (ii) donations of cash or other property by shareholders; and

  • (c) the balance of the surplus at the end of the financial period.

• Marginal note:Earned surplus

  (3) Every statement of earned surplus shall be drawn up to show severally at least the following items:

  • (a) the balance of such surplus at the end of the preceding financial period;

  • (b) the additions to and deductions from such surplus during the financial period and, without restricting the generality of the foregoing, at least the following:

    • (i) the amount of the net profit or loss for the financial period,

    • (ii) the amount of dividends declared on each class of shares, and

    • (iii) the amount transferred to or from reserves; and

  • (c) the balance of the surplus at the end of the financial period.

Marginal note:Statement of source and application of funds

120.1 Every statement of source and application of funds to be placed before an annual meeting of shareholders shall be drawn up so as to present fairly the information shown therein for the period covered by the statement, and shall show severally at least the following:

• (a) funds derived from,

  • (i) current operations,

  • (ii) sale of non-current assets, segregating investments, fixed assets and intangible assets,

  • (iii) issue of securities or other indebtedness maturing more than one year after issue, and

  • (iv) issue of shares; and

• (b) funds applied to,

  • (i) purchase of non-current assets, segregating investments, fixed assets and intangible assets,

  • (ii) redemption or other retirement of securities or repayment of other indebtedness maturing more than one year after issue,

  • (iii) redemption or other retirement of shares, and

  • (iv) payment of dividends.

Marginal note:Balance sheet

• 121 (1) Every balance sheet to be placed before an annual meeting of shareholders shall be drawn up to present fairly the financial position of the company as at the date to which it is made up and to show severally at least the following:

  • (a) cash;

  • (b) debts owing to the company from each of the following, namely, its directors, companies in which those directors hold collectively a majority interest, its officers and its shareholders except debts of reasonable amount arising in the ordinary course of the business of the company that are not overdue having regard to the ordinary terms of credit of the company;

  • (c) debts owing to the company, whether on account of a loan or otherwise, from subsidiaries whose financial statements are not consolidated with those of the company;

  • (d) debts owing to the company, whether on account of a loan or otherwise, from affiliated companies other than subsidiaries;

  • (e) other debts owing to the company segregating those that arose otherwise than in the ordinary course of the company’s business;

  • (f) inventory, stating the basis of valuation;

  • (g) shares, bonds, debentures and other like investments owned by the company, except those mentioned in paragraphs (h) and (i), stating their nature and cost and the basis of valuation thereof and showing separately such as are marketable with a notation of their market value;

  • (h) shares or securities of subsidiaries whose financial statements are not consolidated with those of the company, stating the cost and basis of valuation;

  • (i) shares or securities of affiliated companies other than subsidiaries, stating their cost and basis of valuation;

  • (j) lands, buildings, and plant and equipment, stating

    • (i) the basis of valuation, whether cost or otherwise, and, if valued on the basis of an appraisal made since the date preceding by five years the date of the balance sheet, the date of appraisal, the name of the appraiser, the basis of the appraisal value and the disposition in the accounts of the company of any amounts added to or deducted from such assets on appraisal, and

    • (ii) the amount or amounts accumulated in respect of depreciation, including obsolescence, and separately in respect of depletion;

  • (k) under separate headings, in so far as they are not written off,

    • (i) expenditures on account of future business,

    • (ii) expenses incurred in connection with any issue of shares,

    • (iii) expenses incurred in connection with any issue of securities, including any discount thereon, and

    • (iv) any one or more of the following, namely:

      • (A) goodwill,

      • (B) franchises,

      • (C) patents,

      • (D) copyrights,

      • (E) trade marks, and

      • (F) other intangible assets,

      stating the basis of valuation and the amount, if any, by which the value of any such assets has been written up since the date preceding by five years the date of the balance sheet;

  • (l) the aggregate amount of any outstanding loans under paragraphs 17(2)(c), (d) and (e);

  • (m) bank loans and overdrafts;

  • (n) debts owing by the company on loans, from its directors, officers or shareholders;

  • (o) debts owing by the company to subsidiaries whose financial statements are not consolidated with those of the company, whether on account of a loan or otherwise;

  • (p) debts owing by the company to affiliated companies other than subsidiaries whether on account of a loan or otherwise;

  • (q) other debts owing by the company, segregating those that arose otherwise than in the ordinary course of the company’s business;

  • (r) liability for taxes, including the estimated liability for taxes in respect of the income of the period covered by the statement of profit and loss;

  • (s) dividends declared but not paid;

  • (t) deferred income;

  • (u) securities issued by the company, stating the interest rate, the maturity date, the amount outstanding and the existence of sinking fund, redemption requirements and conversion rights, if any;

  • (v) the authorized capital, giving the number of each class of shares and a brief description of each such class, and indicating therein any class of shares that is redeemable and the redemption price thereof, and indicating separately any class of shares that is redeemable out of capital;

  • (w) the issued capital, giving the number of shares of each class issued and outstanding and the amount received therefor that is attributable to capital, and showing,

    • (i) the number of shares of each class issued since the date of the last balance sheet and the value attributed thereto, distinguishing shares issued for cash, shares issued, directly or indirectly, for services and shares issued, directly or indirectly, for other consideration, and

    • (ii) where any shares have not been fully paid,

      • (A) the number of shares in respect of which calls have not been made and the aggregate amount that has not been called, and

      • (B) the number of shares in respect of which calls have been made and not paid and the aggregate amount that has been called and not paid;

  • (x) contributed surplus;

  • (y) earned surplus; and

  • (z) reserves, showing the amounts added thereto and the amounts deducted therefrom during the financial period.

• Marginal note:Explanatory information

  (2) Explanatory information or particulars of any item mentioned in subsection (1) may be shown by way of a note to the financial statement.

Marginal note:Note to financial statement

• 122 (1) There shall be stated by way of a note to each financial statement

  • (a) particulars of any change in accounting principle or practice or in the method of applying any accounting principle or practice that was made during the period covered and that materially affects the comparison between the statement with that for the immediately preceding period; and

  • (b) the effect, if material, of any such change upon the profit and loss for the period.

• Marginal note:Change of accounting principle or practice

  (2) For the purpose of subsection (1), a change in accounting principle or practice or in the method of applying any accounting principle or practice affects the comparability of a statement with that for the preceding year, even though it does not have a material effect upon the profit or loss for the period.

• Marginal note:Additional information

  (3) Where applicable the following matters shall be referred to in the financial statement or by way of a note thereto:

  • (a) the basis of conversion of amounts from currencies other than the currency in which the financial statement is expressed;

  • (b) foreign currency restrictions that affect the assets of the company;

  • (c) contractual obligations that will require abnormal expenditures in relation to the company’s normal business requirements or financial position or that are likely to involve losses not provided for in the accounts;

  • (d) material contractual obligations in respect of long-term leases, including, in the year in which the transaction was effected, the principal details of any sale and lease transaction;

  • (e) contingent liabilities, stating their nature and, where practicable, the approximate amounts involved;

  • (f) any liability secured otherwise than by operation of law on any asset of the company, stating the liability so secured, but not necessarily specifying the asset on which the liability is secured;

  • (g) any default of the company in principal, interest, sinking fund or redemption provisions with respect to any issue of its securities or credit agreements;

  • (h) the gross amount of arrears of dividends on any class of shares and the date to which those dividends were last paid;

  • (i) where a company has contracted to issue shares or has given an option to purchase shares, the class and number of shares affected, the price and the date for issue of the shares or exercise of the option and, shown separately, the total number of shares optioned to the directors and officers;

  • (j) [Repealed, R.S., 1970, c. 10(1st Supp.), s. 16]

  • (k) in the case of a holding company, the aggregate of any shares, and the aggregate of any securities, of the holding company held by subsidiary companies whose financial statements are not consolidated with that of the holding company;

  • (l) the amount of any loans by the company, or by a subsidiary company, otherwise than in the ordinary course of business, during the financial period of the company, to the directors or officers of the company;

  • (m) any restriction by the charter or by-laws of the company or by contract on the payment of dividends that is significant having regard to the financial position of the company; and

  • (n) any event or transaction other than one in the normal course of business operations, between the date to which the financial statement is made up and the date of the auditor’s report thereon, that materially affects the financial statement;

  • (o) the amount of any obligation for pension benefits arising from service prior to the date of the balance sheet remaining to be charged against operations and the basis on which the company proposes to charge the related costs against operations.

• Marginal note:Note part of financial statement

  (4) Every note to a financial statement is a part of it.

Marginal note:Note of other business

• 122.1 (1) Where a company has, in the course of a financial period, carried on business of two or more classes that, in the opinion of its directors, differ substantially from each other and the company is not one that has any subsidiaries at the end of that financial period, or if it has one or more subsidiaries, does not prepare its financial statement in consolidated form in respect of any subsidiary, there shall be stated by way of a note to each financial statement of the company a statement of the proportions in which the amount of sales or gross revenue for that period, so far as stated in the financial statement in respect of that period, is divided among those classes of business.

• Marginal note:Idem

  (2) Where a company has one or more subsidiaries at the end of its financial period and prepares its financial statement in consolidated form with respect to any of the subsidiaries, if the company and any of the subsidiaries carried on between them in the course of the period business of two or more classes that, in the opinion of the directors of the company, differ substantially from each other, there shall be stated by way of a note to each financial statement of the company a statement of the proportions in which the amount of sales or gross revenue for that period, so far as stated in the financial statement in respect of that period, is divided among those classes of business.

• Marginal note:Classes of business

  (3) For the purposes of this section, classes of business that, in the opinion of the directors, do not differ substantially from each other shall be treated as one class.

• Marginal note:Exception to report

  (4) Notwithstanding subsections (1) and (2), a company need only report in respect of a class of business that contributes ten per cent or more of the total gross revenue of the company.

Marginal note:Information re directors and officers

• 122.2 (1) There shall be stated in each financial statement or in a note thereto

  • (a) the number of directors and their aggregate remuneration as directors;

  • (b) the number of officers and their aggregate remuneration as officers; and

  • (c) the number of officers who are also directors.

• Marginal note:What constitutes remuneration

  (2) For the purposes of this section, the remuneration of a director or an officer includes any remuneration paid to, conferred on, or receivable by him from the company and “remuneration” includes fees, salaries, bonuses, non-accountable expense allowances, contributions paid under any special pension scheme, not generally available to employees of the company, the estimated value of benefits of any kind, and amounts payable by way of compensation for the loss of office as an officer or director.

• Marginal note:“Director” and “officer”

  (3) For the purposes of this section, “director” includes a past director, and “officer” includes a past officer, in receipt of any remuneration from the company.

• Marginal note:Period of remuneration

  (4) The amounts to be shown under this section for any financial period shall be the sums receivable in respect of that period whenever paid or, in the case of sums not receivable in respect of that period, the sums paid during that period.

• Marginal note:Holding companies

  (5) Where the company reporting under this section is a holding company, the information required under subsection (1) for any financial period shall be shown separately for the holding company and each of its subsidiary companies whether or not the financial statement is a consolidated financial statement.

Marginal note:Consolidated financial statement of holding company

• 123 (1) Any company, in this section referred to as “the holding company”, may include in the financial statement to be placed before an annual meeting of shareholders the assets and liabilities and income and expenses of any one or more of its subsidiaries, making due provision for minority interests, if any, and indicating in the financial statement that it is presented in consolidated form.

• Marginal note:Information required in financial statement not consolidated

  (2) Where the assets, liabilities, income and expenses of any one or more subsidiaries of the holding company are not so included in the financial statement of the holding company,

  • (a) the financial statement of the holding company shall include a statement setting forth

    • (i) the reason why the assets and liabilities and income and expenses of the subsidiary or subsidiaries are not included in the financial statement of the holding company,

    • (ii) if there is only one subsidiary, the amount of the holding company’s proportion of the profit or loss of the subsidiary for the financial period coinciding with or ending in the financial period of the holding company, or, if there is more than one subsidiary, the amount of the holding company’s proportion of the aggregate profits less losses, or losses less profits, of all the subsidiaries for the respective financial periods coinciding with or ending in the financial period of the holding company,

    • (iii) the amount included as income from the subsidiary or subsidiaries in the statement of profit and loss of the holding company and the amount included therein as a provision for the loss or losses of the subsidiary or subsidiaries,

    • (iv) if there is only one subsidiary, the amount of the holding company’s proportion of the undistributed profits of the subsidiary earned since the acquisition of the shares of the subsidiary by the holding company to the extent that that amount has not been taken into the accounts of the holding company, or if there is more than one subsidiary, the amount of the holding company’s proportion of the aggregate undistributed profits of all subsidiaries earned since the acquisition of their shares by the holding company less its proportion of the losses, if any, suffered by any subsidiary since the acquisition of its shares to the extent that that amount has not been taken into the accounts of the holding company, and

    • (v) any qualifications contained in the report of the auditor of any subsidiary on its financial statement for the financial period to which the report relates, and any note or reference contained in that financial statement to call attention to a matter that, apart from the note or reference, would properly have been referred to in such a qualification, in so far as the matter that is the subject of the qualification or note is not provided for by the company’s own financial statement and is material from the point of view of its shareholders;

  • (b) if for any reason the directors of the holding company are unable to obtain such information as is necessary for the preparation of the statement that is to be included in the financial statement of the holding company, the directors who sign the financial statement shall so report in writing, and their report shall be included in the financial statement in lieu of the statement;

  • (c) copies of the latest financial statement of the subsidiary or subsidiaries shall be kept on hand by the holding company at its head office and shall be open to inspection by the shareholders of the holding company on request during the normal business hours of the holding company.

• Marginal note:Order to bar inspection

  (3) A holding company may, within fifteen days of a request for an inspection under paragraph (2)(c), apply to the chief justice or acting chief justice of the court of the province in which the head office of the company is situated, or a judge of such court designated by either of them, for an order barring the right of inspection referred to in paragraph (2)(c) and the judge may, upon such terms and conditions as he may impose, refuse such inspection where he is satisfied that the inspection would be detrimental to the interests of the holding company or the subsidiary or subsidiaries.

• Marginal note:Notice to Minister

  (4) A holding company shall give the Minister not less than ten days notice of any application under subsection (3) and the Minister is entitled to appear by counsel and to be heard thereon.

• Marginal note:Appeal

  (5) An interested person may appeal to the appellate court of the province in which the head office of the company is situated from any order made under subsection (3).

Marginal note:Insignificant matter

124 Notwithstanding sections 119 to 123, it is not necessary to state in a financial statement any matter that in all the circumstances is of relative insignificance.

Marginal note:Subsidiary company

• 125 (1) For the purposes of this Act, a company is a subsidiary of another company only if,

  • (a) it is controlled by

    • (i) that other, or

    • (ii) that other and one or more companies each of which is controlled by that other, or

    • (iii) two or more companies each of which is controlled by that other; or

  • (b) it is a subsidiary of a subsidiary of that other company.

• Marginal note:Holding company

  (2) For the purposes of this Act, a company is the holding company of another only if that other is its subsidiary.

• Marginal note:Affiliated companies

  (3) For the purposes of this Act,

  • (a) one company is affiliated with another company only if one of them is the subsidiary of the other or both are subsidiaries of the same company or each of them is controlled by the same person; and

  • (b) when two companies are affiliated, or are deemed by this section to be affiliated, with the same company at the same time, they shall be deemed to be affiliated with each other.

• Marginal note:Controlled company

  (4) For the purposes of this section, a company is controlled by another company or person or by two or more companies only if

  • (a) shares of the first-mentioned company carrying more than fifty per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of that other company or person or by or for the benefit of those other companies; and

  • (b) the votes carried by such shares are sufficient, if exercised, to elect a majority of the board of directors of the first mentioned company.

Marginal note:“Reserve”

126 In a financial statement, the term “reserve” shall be used to describe only

• (a) amounts appropriated from earned surplus at the discretion of management for a purpose other than to meet a liability, contingency or commitment known, admitted or made as at the statement date or a decline in value of an asset that has occurred;

• (b) amounts appropriated from earned surplus pursuant to the charter or by-laws of the company for a purpose other than to meet a liability, contingency or commitment known, admitted or made as at the statement date or a decline in value of an asset that has occurred; and

• (c) amounts that are appropriated from earned surplus in accordance with the terms of a contract and that can be restored to the earned surplus when the conditions of the contract are fulfilled.

Marginal note:Approval of financial statement

• 127 (1) The financial statement shall be approved by the board of directors, and the approval shall be evidenced at the foot of the balance sheet by the signature of two of the directors duly authorized to sign.

• Marginal note:Auditor’s report to be attached

  (2) The auditor’s report shall be attached to the financial statement and shall be read at the annual meeting of shareholders and shall be open to inspection by any shareholder.

• Marginal note:Offence

  (3) A company is guilty of an offence that issues, circulates or publishes a copy of the financial statement

  • (a) the original of which has not been approved by its board of directors;

  • (b) without having the balance sheet signed by two directors; or

  • (c) without accompanying the statement with the auditor’s report.

Marginal note:Sending out financial statements

• 128 (1) Fourteen days or more before the date of the annual meeting thereof,

  • (a) every company shall send by prepaid post a copy of the financial statement and a copy of the auditor’s report to each shareholder at his latest address as shown on the books of the company, except those shareholders who have informed the company in writing that they do not wish to receive a copy of those documents, and

  • (b) every company to which this paragraph applies shall file a copy of such documents with the Department of Consumer and Corporate Affairs together with proof in such form as may be satisfactory to the Minister of due compliance with the provisions of paragraph (a).

• Marginal note:Statements required by security holder

  (2) Every company shall, upon demand being made therefor by any holder of securities of the company, furnish him without charge therefor with a copy of the documents mentioned in subsection (1) that have most recently been made available to the shareholders prior to such demand.

• Marginal note:Application of paragraph 128(1)(b)

  (3) Paragraph (1)(b) applies to

  • (a) a public company, and

  • (b) a private company whose gross revenue exceeds ten million dollars in any period, ending in or after the year in which this section comes into force, in respect of which a financial statement is required by this Act to be prepared, or whose total assets on the last day of any such period exceeds five million dollars,

  but does not apply to a private company that is a personal corporation within the meaning of section 76 of the Income Tax Act in the whole of the year in respect of which a financial statement is required by this Act.

• Marginal note:Interpretation

  (4) For the purposes of paragraph (3)(b), the gross revenues and total assets of any other company with which a private company mentioned in the said paragraph (b) is affiliated within the meaning of section 125 shall be included in the gross revenue and the total assets of that private company, unless the financial statements of the private company and its affiliates, if any, are consolidated with those of a holding company that files such consolidated financial statements in accordance with paragraph (1)(b).

• Marginal note:Exception

  (5) Where a private company would, but for this subsection, be affiliated with any other company by reason of being controlled by the same person (which person is hereinafter referred to in this subsection as the “controller”), and it is established to the satisfaction of the Minister that

  • (a) there is in effect an agreement or arrangement enforceable according to the terms thereof, under which, upon the satisfaction of a condition or the happening of an event that it is reasonable to expect will be satisfied or will happen, the private company will

    • (i) cease to be controlled by the controller, and

    • (ii) become controlled by a person or group of persons, with whom or with each of the members of which, as the case may be, the controller is dealing at arm’s length, and

  • (b) the chief purpose for which the private company is so controlled is the safeguarding of rights or interests of the controller in respect of

    • (i) any loan made by the controller, the whole or any part of the principal amount of which is outstanding, or

    • (ii) any shares of the capital stock of the private company that are owned by the controller and that are, under the agreement or arrangement, to be redeemed by the private company or purchased by the person or group of persons referred to in subparagraph (a)(ii),

  the private company and the other company with which it would otherwise be so affiliated shall be deemed, for the purpose of this section, not to be affiliated with each other so long as the circumstances described in paragraphs (a) and (b) remain unaltered or until the Minister otherwise prescribes by order, whichever event first occurs.

Marginal note:Inspection

• 129 (1) On payment of the fees prescribed therefor by the regulations, any person may inspect any documents required by this Act to be filed with the Department of Consumer and Corporate Affairs.

• Marginal note:Copies

  (2) On payment of the fees prescribed therefor by the regulations, the Minister shall, on request, supply a copy of or extract from any document described in subsection (1).

Marginal note:Offence and punishment

• 129.1 (1) A company that has failed to file a copy of its financial statement as required by paragraph 128(1)(b) is guilty of an offence and is liable on summary conviction to a fine of not less than one hundred dollars and not more than five hundred dollars for each day during which the default continues; and every director or officer who knowingly authorized, permitted or acquiesced in any such default is also guilty of an offence and is liable on summary conviction to a like fine.

• Marginal note:Idem

  (2) A company that fails to comply with section 127 or paragraph 128(1)(a) or subsection 128(2) is guilty of an offence and is liable on summary conviction to a fine of not less than five hundred dollars and not more than two thousand dollars and every director or officer of the company who knowingly authorized, permitted or acquiesced in any such failure is also guilty of an offence and is liable on summary conviction to a like fine.

Marginal note:Saving

129.2 Sections 102, 118, 127, 128, 129.1 and 150 do not apply to

• (a) a company for which a receiver and manager has been appointed by a court of competent jurisdiction;

• (b) a company for which a liquidator has been appointed under the Winding-up Act by a court of competent jurisdiction; or

• (c) a company in respect of which a receiving order has been made or an assignment has been filed under the Bankruptcy Act;

while the company is under the control of any receiver and manager, liquidator or trustee in bankruptcy.

Marginal note:Order to exempt

• 129.3 (1) A company may apply to the chief justice or acting chief justice of the court in the province in which the head office of the company is situated, or a judge of such court designated by either of them, for an order

  • (a) permitting the amount of the sales or gross revenue referred to in paragraph 119(1)(a) to be omitted from the income statement,

  • (b) permitting the information referred to in section 122.1 to be omitted from the financial statement of a company, or

  • (c) exempting, in whole or in part, a private company that is subject to the provisions of paragraph 128(3)(b) from the application of paragraph 128(1)(b).

• Marginal note:Power of judge

  (2) The judge may, upon such terms and conditions as he may impose, permit such omission or grant such exemption, in whole or in part, when he is satisfied that the disclosure of the information required by any of the provisions referred to in paragraphs (1)(a), (b) or (c) would be seriously and unfairly detrimental to the interests of the company, but, in so deciding, the judge shall have regard to the interest of the public in having disclosure of the information.

• Marginal note:Notice to Minister

  (3) A company shall give the Minister not less than ten days notice of any application under subsection (1) and the Minister is entitled to appear by counsel and to be heard thereon.

• Marginal note:Appeal

  (4) An interested person may appeal to the appellate court of the province in which the head office of the company is situated from any order made under subsection (1).

Marginal note:Appointment of auditor at first general meeting

• 130 (1) The shareholders of a company at their first general meeting shall appoint one or more auditors to hold office until the close of the next annual meeting, and, if the shareholders fail to do so, the directors shall forthwith make such appointment or appointments.

• Marginal note:Annual appointment of auditor

  (2) The shareholders of a company at each annual meeting shall appoint one or more auditors to hold office until the close of the next annual meeting, and, if an appointment is not so made, the auditor in office continues in office until a successor is appointed.

• Marginal note:Notice of intention to nominate auditor

  (3) A person, other than a retiring auditor, is not capable of being appointed auditor at an annual meeting unless notice in writing of an intention to nominate that person to the office of auditor has been given by a shareholder of the company not less than fourteen days before the annual meeting; and the company shall send a copy of any such notice to the retiring auditor and to the person it is intended to nominate, and shall give notice thereof to the shareholders, either by advertisement or in any other mode provided by the by-laws of the company, not less than seven days before the annual meeting.

• Marginal note:Vacancy

  (4) The directors may fill any casual vacancy in the office of auditor, but while the vacancy continues the surviving or continuing auditor, if any, may act.

• Marginal note:Removal of auditor

  (5) The shareholders, by a resolution passed by at least two-thirds of the votes cast at a general meeting of which notice specifying the intention to pass such resolution was given, may remove any auditor before the expiration of his term of office, and shall by a majority of the votes cast at that meeting appoint another auditor in his stead for the remainder of his term.

• Marginal note:Remuneration

  (6) The remuneration of an auditor appointed by the shareholders shall be fixed by the shareholders or by the directors, if they are authorized to do so by the shareholders, and the remuneration of an auditor appointed by the directors shall be fixed by the directors.

• Marginal note:Appointment by Minister

  (7) Where for any reason no auditor is appointed, the Minister may, on the application of any shareholder, appoint one or more auditors to hold office until the close of the next annual meeting and fix the remuneration to be paid by the company for his or their services.

• Marginal note:Notice of appointment

  (8) When an auditor is appointed under this section, the company shall give him notice thereof forthwith in writing unless he held that office immediately prior to his appointment.

Marginal note:Disqualification for appointment

• 131 (1) Except as provided in subsection (2), no person shall be appointed as auditor of a company who is a director, officer or employee of that company or an affiliated company or who is a partner, employer or employee of any such director, officer or employee.

• Marginal note:Private company exception

  (2) Upon the unanimous vote of the shareholders of a private company, present or represented at the meeting at which the auditor is appointed, a director, officer or employee of that company or an affiliated company, or a partner, employer or employee of that director, officer or employee may be appointed as auditor of that company.

• Marginal note:Non-application of subsection (2)

  (2.1) Subsection (2) does not apply if the company is a company to which paragraph 128(1)(b) applies, or if the company is a subsidiary of a company incorporated in any jurisdiction in Canada that is not a private company within the meaning of this Act.

• Marginal note:Statement of auditor’s position

  (3) A person appointed as auditor under subsection (2) shall indicate in his report to the shareholders on the annual financial statement of the company that he is a director, officer or employee of the company or an affiliated company or a partner, employer or employee of the director, officer or employee.

Marginal note:Annual audit

• 132 (1) The auditor shall make such examination as will enable him to report to the shareholders as required under subsection (2).

• Marginal note:Auditor’s report

  (2) The auditor shall make a report to the shareholders on the financial statement, other than the part thereof that relates to the period referred to in subparagraph 118(1)(a)(ii), to be laid before the company at any annual meeting during his term of office and shall state in his report whether in his opinion the financial statement referred to therein presents fairly the financial position of the company and the results of its operations for the period under review in accordance with generally accepted accounting principle applied on a basis consistent with that of the preceding period.

• Marginal note:Where statement required

  (3) The auditor in his report shall make such statements as he considers necessary in any case where

  • (a) the financial statement of the company is not in agreement with the accounting records;

  • (b) the financial statement of the company is not in accordance with the requirements of this Act;

  • (c) he has not received all the information and explanation that he has required; or

  • (d) proper accounting records have not been kept, so far as appears from his examination.

• Marginal note:Right of access to records

  (4) The auditor of a company shall have access at all times to all records, documents, books, accounts and vouchers of the company, and is entitled to require from the directors and officers of the company

  • (a) such information and explanations,

  • (b) such access to all records, documents, books, accounts and vouchers of any subsidiary company, and

  • (c) such information and explanations from the directors and officers of any subsidiary company,

  as in his opinion may be necessary to enable him to report as required by subsection (2).

• Marginal note:Right to attend meetings

  (5) The auditor of a company is entitled to attend any meeting of shareholders of the company and to receive all notices and other communications relating to any such meeting that any shareholder is entitled to receive, unless waived by such auditor, and to be heard at any such meeting that he attends on any part of the business of the meeting that concerns him as auditor.

• Marginal note:Required attendance of auditor

  (6) A company, upon receipt, not less than seven days before a meeting of shareholders, of a written application of shareholders holding not less than ten per cent of the issued shares of the company that the auditor of the company be requested to attend the meeting, shall forthwith in writing request the auditor to attend that meeting of shareholders, and the auditor or his representative shall so attend.

Marginal note:Annual returns

• 133 (1) Every company shall, on or before the 1st day of June in every year, make a summary as of the 31st day of March preceding, specifying the following particulars:

  • (a) the corporate name of the company;

  • (b) the manner in which the company is incorporated and the date of incorporation;

  • (c) the complete postal address of the head office of the company;

  • (d) the date upon which and the place where the last annual meeting of the shareholders of the company was held;

  • (e) the names and complete postal addresses of the persons who at the date of the return are the directors of the company; and

  • (f) the name and complete postal address of the auditor of the company.

• Marginal note:Summary to be filed, signed and certified

  (2) The summary mentioned in subsection (1) shall be completed and filed in duplicate in the Department on or before the 1st day of June aforesaid, and each of the duplicates shall be signed and certified by a director or an officer of the company.

• Marginal note:Defaults

  (3) A company that makes default in complying with any requirement of this section is guilty of an offence and is liable on summary conviction to a fine of not less than twenty dollars and not more than one hundred dollars for each day during which the default continues; and every director or officer who knowingly authorized, permitted or acquiesced in any such default is guilty of an offence and is liable on summary conviction to a like fine.

• Marginal note:Duplicate of summary

  (4) The Minister, or an official of the Department designated for that purpose, shall endorse upon one duplicate of the above summary the date of the receipt thereof at the Department and shall return the duplicate summary to the company and it shall be retained at the head office of the company available for perusal of, and for the purpose of making copies thereof or extracts therefrom by, any shareholder or creditor of the company.

• Marginal note:Proof of endorsement

  (5) The duplicate of the said summary endorsed as required under subsection (4) is evidence that the summary was filed in the Department pursuant to this section on any prosecution under this section and the written or stamped signature of an official of the Department to the endorsement of the said duplicate shall be deemed prima facie proof that the said official has been designated to affix his signature thereto.

• Marginal note:Proof of failure to file summary

  (6) A certificate under the hand and seal of office of the Minister that the aforesaid summary in duplicate was not filed in the Department by a company pursuant to this section is evidence on a prosecution under this section that such summary was not filed in the Department.

• Marginal note:Companies exempt

  (7) Companies incorporated after the 1st day of March in any year are not subject to the provisions of this section until the 31st day of March of the following year.

• Marginal note:Where default exists

  (8) Where a summary in respect of an earlier year has not been filed with the Department or where the annual fees are in default, the summary required under subsection (1) may not be filed until the summary in respect of the earlier year has been filed or until the annual fee has been paid, as the case may be.

• Marginal note:Failure to file for two consecutive years

  (9) Where a company has for two consecutive years failed to file in the Department the summary required under subsection (1), the Minister may, notwithstanding paragraph 150(1)(c), give notice to the company that an order dissolving the company will be issued unless within one year after the publication of the notice in the Canada Gazette the company files a summary in respect of those two years.

• Marginal note:Publication of notice

  (10) The notice under subsection (9) shall be given by registered mail to the company or by publication of the notice in the Canada Gazette.

• Marginal note:Dissolution of company

  (11) One year after the publication of notice in the Canada Gazette, if the company has not filed a summary for the two years in respect of which it was in default, the Minister may, by order published in the Canada Gazette, declare the company dissolved, and thereupon the company is dissolved, and section 33 applies mutatis mutandis thereto.

• Marginal note:“Winding-up”

  (11.1) For the purpose of distributing the assets of a company dissolved by order under subsection (11) among shareholders or creditors, the affairs of the company may be wound up under the Winding-up Act, upon an application to a court of competent jurisdiction, by a director, shareholder or creditor of the company or the Attorney General of Canada, for an order winding up the company under that Act, as a company described in paragraph 10(a) of that Act.

• Marginal note:Notice of winding-up or bankruptcy

  (12) Where a company is being wound up or where a company is being administered by a trustee in bankruptcy, the liquidator or trustee, as the case may be, shall annually, without fee therefor, give notice of the winding-up or bankruptcy to the Department in lieu of the summary required under subsection (1).

Arrangements and Compromises

Marginal note:Meeting of shareholders to consider compromise

• 134 (1) Where a compromise or arrangement is proposed between a company and its shareholders or any class of them affecting the rights of shareholders or any class of them, under the company’s letters patent or supplementary letters patent or by-laws, the chief justice or acting chief justice of the court, or a judge of the said court designated by either of them, of the province in which the head office of the company is situated may, on application in a summary way of the company or of any shareholder, order a meeting of the shareholders of the company or of any class of shareholders, as the case may be, to be summoned in such manner as the said judge directs.

• Marginal note:When compromise binding on shareholders

  (2) Where the shareholders or class of shareholders, as the case may be, present in person or by proxy at the meeting, by three-fourths of the shares of each class represented and voted agree to the compromise or arrangement either as proposed or as altered or modified at such meeting, called for the purpose, such compromise or arrangement may be sanctioned by the said judge, and if so sanctioned such compromise or arrangement and any reduction or increase of share capital and any provisions for the allotment or disposition thereof by sale or otherwise as therein set forth, may be confirmed by supplementary letters patent, which are binding on the company, and the shareholders or class of shareholders, as the case may be.

• Marginal note:Notice to shareholders

  (3) Where, at a meeting called as hereinbefore provided, dissentient votes are cast by shareholders of one or more classes affected, and where, notwithstanding such dissentient votes, the compromise or arrangement is agreed to by the shareholders or each class of shareholders represented as aforesaid, the company shall, unless the said judge in his discretion otherwise orders, notify each dissentient shareholder in such manner as may be prescribed by the said judge of the time and place when application will be made to the judge for the sanction of the compromise or arrangement.

• Marginal note:Extension of section to certain reorganizations of share capital, etc.

  (4) The expression “arrangement” as used in this section and section 135 shall be construed as extending to any reorganization of the share capital of the company including without limiting the foregoing the consolidation of shares of different classes, the division of shares into shares of different classes, the conversion of shares into shares of another class or classes and the modification of the provisions attaching to shares of any class or classes and as including an amalgamation or reconstruction as hereinafter defined; the expression “amalgamation or reconstruction” means an arrangement pursuant to which a company (in this subsection called “the transferor company”) transfers or sells or proposes to transfer or sell to any other company (in this subsection called “the transferee company”), the whole or a substantial part of the business and assets of the transferor company for a consideration consisting in whole or in part of shares, debentures or other securities of the transferee company and, either, any part of such consideration is proposed to be distributed among shareholders of the transferor company of any class, or, the transferor company proposes to cease carrying on the business or part of its business so sold or transferred or proposed to be sold and transferred.

Marginal note:Meeting of shareholders ordered by court if company is subject to proceedings

• 135 (1) Where a compromise or arrangement is proposed between a company that is subject to any pending proceedings under the Winding-up Act or the Companies’ Creditors Arrangement Act, and its creditors or any class of them or its shareholders or any class of them, affecting or cancelling conditionally or otherwise, the rights of shareholders or any class of them under the company’s letters patent or supplementary letters patent, or by-laws, the court having jurisdiction in such pending proceedings as aforesaid may on application in a summary way of the company or any shareholder or liquidator, order a meeting of the shareholders or class of shareholders to be summoned in such manner as the court directs.

• Marginal note:Compromise agreed to, and sanctioned by court, may be confirmed by letters patent

  (2) Where the shareholders or class of shareholders, as the case may be, present in person or by proxy at the meeting by three-fourths of the shares of each class represented and voted agree to the compromise or arrangement, either as proposed or as altered or modified at such meeting, and the requisite majority of the creditors or class of creditors under any relative provisions of the Winding-up Act or the Companies’ Creditors Arrangement Act, also agree to such compromise or arrangement, the court having jurisdiction in such pending proceedings as aforesaid may sanction such compromise or arrangement, and if so sanctioned by the court, a certified copy of such compromise or arrangement as so sanctioned and of the order or judgment of the court sanctioning the same shall be deposited in the office of the Minister, and such compromise or arrangement and any reduction or cancellation of share capital and any increase or creation of new share capital and any provisions for the allotment or disposition thereof by sale or otherwise as therein set forth, may be confirmed by supplementary letters patent, which are binding upon the company and upon all the creditors or class of creditors and shareholders or class of shareholders, and on any liquidator or contributories concerned.

• Marginal note:Compromise where company subject to proceedings under Bankruptcy Act

  (3) Where a compromise or arrangement proposed between a company that is subject to any pending proceedings under the Bankruptcy Act, and its creditors or any class of them or its shareholders or any class of them, affecting or cancelling conditionally or otherwise the rights of shareholders or any class of them under the company’s letters patent or supplementary letters patent or by-laws, has been approved by the court having jurisdiction in such pending proceedings under the Bankruptcy Act, a certified copy of such compromise or arrangement as so approved and of the order or judgment of the court approving the same shall be deposited in the office of the Minister, and such compromise or arrangement and any reduction or cancellation of share capital and any increase or creation of new share capital and any provisions for the allotment or disposition thereof by sale or otherwise as therein set forth may be confirmed by supplementary letters patent, which are binding upon the company and upon all the creditors or class of creditors and shareholders or class of shareholders and on any custodian or trustee concerned.

Take-over Bids

Marginal note:Definitions

135.1 In this section and in sections 135.2 to 135.93,

directors’ circular

circulaire des administrateurs

directors’ circular means the circular prescribed by section 135.7; (circulaire des administrateurs)

exempt offer

offre franche

exempt offer means

• (a) an offer to purchase shares by way of private agreement with individual shareholders and not made to shareholders generally,

• (b) an offer to purchase shares to be effected through the facilities of a recognized stock exchange or in the over-the-counter market,

• (c) an offer to purchase shares in a private company or in a public company that has fewer than fifteen shareholders, two or more persons who are joint registered owners of one or more shares being counted as one shareholder, or

• (d) an offer exempted under section 135.91; (offre franche)

offeree

personne pressentie

offeree means a person to whom a take-over bid is made; (personne pressentie)

offeree company

compagnie pressentie

offeree company means a company whose shares are the subject of a take-over bid; (compagnie pressentie)

offeror

offrant

offeror means a person, other than an agent, who makes a take-over bid, and includes two or more persons,

• (a) whose take-over bids are made jointly or in concert, or

• (b) who intend to exercise jointly or in concert any voting rights attaching to the shares for which a take-over bid is made; (offrant)

offeror’s presently-owned shares

actions actuellement possédées par l’offrant

offeror’s presently-owned shares means equity shares of an offeree company beneficially owned, directly or indirectly, by the offeror or an associate, within the meaning of section 100, of the offeror on the date of a take-over bid; (actions actuellement possédées par l’offrant)

take-over bid

offre visant à la prise de contrôle

take-over bid means an offer, or offers, (other than an exempt offer) directly or indirectly, made at approximately the same time to shareholders to purchase such number of equity shares of a company as, together with the offeror’s presently-owned shares, will in the aggregate exceed ten per cent of the outstanding equity shares of the company. (offre visant à la prise de contrôle)

Marginal note:Applicable rules for take-over bids

135.2 The following rules apply to every take-over bid:

• (a) the period of time within which shares may be deposited pursuant to a take-over bid must not be less than twenty-one days from the date thereof;

• (b) any shares deposited pursuant to a take-over bid must not be taken up and paid for by the offeror until the expiration of ten days from its date;

• (c) any shares deposited pursuant to a take-over bid may be withdrawn by or on behalf of an offeree at any time until the expiration of ten days from its date;

• (d) where a take-over bid is made for less than all the equity shares of a class owned by offerees, shares deposited pursuant thereto must not be taken up and paid for by an offeror until the expiration of twenty-one days from its date;

• (e) where a take-over bid is made for less than all the equity shares of a class owned by offerees, the period of time within which shares may be deposited pursuant to the take-over bid, or any extension thereof, must not exceed thirty-five days from the date of the take-over bid;

• (f) where a take-over bid is made for less than all the equity shares of a class owned by offerees, shares deposited pursuant to the take-over bid must be taken up and paid for, if all the terms and conditions thereof stipulated by the offeror and not subsequently waived by him have been complied with, within fourteen days after the last day within which shares may be deposited pursuant thereto; and

• (g) where a take-over bid is made for less than all the equity shares of a class owned by offerees and where a greater number of shares is deposited pursuant thereto than the offeror is bound or willing to take up and pay for, the shares taken up by the offeror must be taken up as nearly as may be pro rata, disregarding fractions, according to the number of shares deposited by each offeree.

Marginal note:To be sent by mail

• 135.3 (1) A take-over bid shall be sent by prepaid mail to each of the directors and to all the shareholders of the offeree company resident in Canada and shall be conclusively deemed to have been dated as of the date on which it was so sent; and a copy of the take-over bid and all supporting or supplementary material, if any, shall forthwith be sent to the Department of Consumer and Corporate Affairs.

• Marginal note:Resident shareholder

  (2) For the purposes of this section, a shareholder of an offeree company is resident in Canada if an address within Canada is shown opposite the name of the shareholder in a book required by section 109 to be kept by the company.

Marginal note:Increased consideration

• 135.4 (1) Where the terms of a take-over bid are varied before the expiration thereof by increasing the consideration offered for the equity shares of an offeree company, the offeror shall pay such increased consideration to each offeree whose shares are taken up and paid for pursuant to the take-over bid whether or not such shares have been taken up by the offeror before the variation of the take-over bid.

• Marginal note:When bid total lowered

  (2) Where a take-over bid for all the equity shares of a class owned by offerees is converted, by amendment or otherwise, to a bid for less than all the equity shares of a class owned by offerees, the take-over bid shall be conclusively deemed to be for lees than all the equity shares of a class owned by offerees.

Marginal note:Funds to be available

135.5 Where a take-over bid provides that the consideration for the shares deposited pursuant thereto is to be paid in cash or partly in cash, the offeror shall make adequate arrangements to ensure that the required funds are available to effect payment in full for all shares owned by offerees that the offeror has offered to purchase pursuant to the take-over bid.

Marginal note:Take-over bid circular

• 135.6 (1) A take-over bid circular shall form part of or accompany a take-over bid.

• Marginal note:Contents

  (2) Every take-over bid circular shall contain such information as may be prescribed by the regulations.

• Marginal note:When securities offered

  (3) Where a take-over bid provides that the consideration for the shares of the offeree company is to be, in whole or in part, securities of any other company, the take-over bid circular shall contain the additional information pre-scribed by section 135.92.

Marginal note:Directors’ circular

• 135.7 (1) Where the board of directors of an offeree company recommends to offerees acceptance or rejection of a take-over bid made to such offerees, the directors shall send or cause to be sent to each offeree a directors’ circular, which shall contain such information as may be prescribed by the regulations.

• Marginal note:Communication of directors

  (2) A directors’ circular shall form part of or accompany the communication of the directors and shall be sent to each of the directors and to all shareholders of the offeree company resident in Canada, by prepaid mail at their latest address as shown on the books of the company; and a copy of the directors’ circular and all supporting or supplementary material, if any, shall forthwith be sent to the Department of Consumer and Corporate Affairs.

Marginal note:Consent to use of opinion required

135.8 No report, opinion or statement of a solicitor, auditor, accountant, engineer, appraiser or any other person whose profession lends credibility to a statement made by him shall form part of or accompany a take-over bid or a directors’ circular unless such person has consented in writing to the use of the report, opinion or statement.

Marginal note:Company to approve circular

• 135.9 (1) Where a take-over bid is made by or on behalf of any other company, the contents of the take-over bid circular shall be approved and the delivery thereof authorized by the directors of the company.

• Marginal note:Directors to approve circular

  (2) The contents of a directors’ circular shall be approved and the delivery thereof authorized by the directors of the offeree company.

Marginal note:Order of court

• 135.91 (1) Any person may at any time apply to the chief justice or acting chief justice of the court of the province in which the head office of the offeree company is situated, or a judge of such court designated by either of them, for an order declaring a take-over bid to be or to have been an exempt offer, and the judge may, upon such terms and conditions as he may impose, order the proposed offer to be or to have been exempt, if in the opinion of the judge the exemption would not be oppressive to any shareholder or class of shareholder of the company.

• Marginal note:Notice

  (2) The applicant shall give the Minister ten days notice of the hearing of any application under subsection (1), and the Minister is entitled to appear by counsel and to be heard thereon.

• Marginal note:Appeal

  (3) Any interested person may appeal to the appellate court of the province in which the head office of the company is situated from any order made under subsection (1).

• Marginal note:Application for exemption

  (4) The Minister shall cause to be set out in the periodical mentioned in section 100.2 every application for exemption under this section and its disposition.

Marginal note:Contents of take-over bid circular

135.92 A take-over bid circular required by subsection 135.6(3) shall contain

• (a) the information prescribed by section 79, modified as the circumstances require, or prescribed by the prospectus provisions incorporated or set out in the take-over bid provisions of such province or foreign country in which a take-over bid circular or a document of a similar nature is required for the take-over bid presently being made as may be prescribed by the regulations; and

• (b) the particulars of any information known to the offeror that indicates any material change in the financial position or prospects of the company whose securities are offered in exchange for the shares of the offeree company since the date of the latest, published interim or annual financial statement of such company.

Marginal note:Offences and punishment

• 135.93 (1) An offeror who

  • (a) makes a take-over bid that fails to comply with section 135.2 or 135.3;

  • (b) in the course of effecting a take-over bid, fails to comply with section 135.4 or 135.5, where applicable;

  • (c) in the course of effecting a take-over bid, fails to cause a take-over bid circular to form part of or accompany the take-over bid as required by subsection 135.6 (1);

  • (d) in the course of effecting a take-over bid, mails a take-over bid circular that does not contain the information, statements or consents prescribed by regulation or contains any information that, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statements contained therein false or misleading; or

  • (e) in the course of effecting a take-over bid, mails a take-over bid circular to which subsection 135.6(3) applies that does not contain the information, statements, consents and reports prescribed by section 135.92 or contains any information that, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statements contained therein false or misleading;

  is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year or to both, and every person who knowingly authorizes, permits or acquiesces in any such act or failure is also guilty of an offence and is liable on summary conviction to a like penalty.

• Marginal note:Idem

  (2) Every director of an offeree company who knowingly authorizes, permits or acquiesces in recommending to the shareholders of the offeree company acceptance or rejection of a take-over bid without complying with section 135.7 is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Idem

  (3) Every director of an offeree company who authorizes, permits or acquiesces in the mailing of a directors’ circular that does not contain the information, statements, consents and reports prescribed by regulation or contains any information that, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statement contained therein false or misleading, is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Saving

  (4) No person is guilty of an offence under paragraph (1)(d) or (e) or under subsection (3) in respect of any untrue statement of a material fact or omission to state a material fact in a takeover bid circular or directors’ circular, as the case may be, if the untruth of such statement or the fact of such omission was not known to the person who authorized, permitted or acquiesced in the mailing of the take-over bid circular or the directors’ circular, as the case may be, and in the exercise of reasonable diligence could not have been known to such person.

Marginal note:Notice to dissenting shareholder

• 136 (1) Where any contract involving the transfer of shares or any class of shares in a company (in this section referred to as “the transferor company”) to any other company (in this section referred to as “the transferee company”) has, within four months after the making of the offer in that behalf by the transferee company, been approved by the holders of not less than nine-tenths of the shares affected, or not less than nine-tenths of each class of shares affected, if more than one class of shares is affected, the transferee company may, at any time within two months after the expiration of the said four months, give notice, in such manner as may be prescribed by the court in the province in which the head office of the transferor company is situated, to any dissenting shareholder that it desires to acquire his shares, and where such notice is given the transferee company is, unless on an application made by the dissenting shareholder within one month from the date on which the notice was given the court thinks fit to order otherwise, entitled and bound to acquire those shares on the terms on which, under the contract, the shares of the approving shareholders are to be transferred to the transferee company.

• Marginal note:Shares acquired by transferee company

  (2) Where a notice has been so given and the court has not ordered to the contrary, the transferee company shall, on the expiration of one month from the date on which the notice was given, or, if an application to the court by the dissenting shareholder is then pending, after the application has been disposed of, transmit a copy of the notice to the transferor company and pay or transfer to the transferor company the amount or other consideration representing the price payable by the transferee company for the shares that by virtue of this section it is entitled to acquire, and the transferor company shall thereupon register the transferee company as the holder of those shares.

• Marginal note:Sums to be kept in trust

  (3) Any sums so received by the transferor company shall be paid into a separate bank account in a chartered bank in Canada and such sums and any other consideration so received shall be held by the transferor company in trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received.

• Marginal note:Definitions

  (4) In this section

  contract

  contrat

  contract includes an offer of exchange and any plan or arrangement, whether contained in or evidenced by one or more documents, whereby or pursuant to which the transferee company has become or may become entitled or bound absolutely or conditionally to acquire all the shares in the transferor company of any one or more classes of shareholders who accept or have accepted the offer or who assent to or have assented to the plan or arrangement; (contrat)

  dissenting shareholder

  actionnaire dissident

  dissenting shareholder includes a shareholder who has not accepted the offer or assented to the plan or arrangement and any shareholder who has failed or refused to transfer his shares to the transferee company in accordance with the contract. (actionnaire dissident)

Amalgamation

Marginal note:Amalgamation of companies

• 137 (1) Any two or more companies to which this Part applies may amalgamate and continue as one company.

• Marginal note:Amalgamation agreements

  (2) Companies proposing to amalgamate may enter into an agreement for the amalgamation prescribing its terms and conditions and the mode of carrying the amalgamation into effect.

• Marginal note:Particulars of agreement

  (3) The amalgamation agreement shall further set out

  • (a) the name of the amalgamated company;

  • (b) the objects of the amalgamated company;

  • (c) the amount of its authorized capital, the division thereof into shares and the rights, restrictions, conditions or limitations attaching to any class of shares;

  • (d) the place within Canada at which the head office of the amalgamated company is to be situated;

  • (e) the names, callings and postal addresses of the first directors thereof;

  • (f) when the subsequent directors are to be elected;

  • (g) whether or not the by-laws of the amalgamated company are to be those of one of the amalgamating companies and, if not, a copy of the proposed by-laws; and

  • (h) such other details as may be necessary to perfect the amalgamation and to provide for the subsequent management and working of the amalgamated company and the manner of converting the authorized and issued capital of each of the companies into that of the amalgamated company as determined pursuant to paragraph (c) above.

• Marginal note:Adopting amalgamation agreements

  (4) The amalgamation agreement shall be submitted to the shareholders of each class of shares of each of the amalgamating companies at general meetings thereof called for the purpose of considering the agreement, and, if three-fourths of the votes of each class of shares cast at each meeting are in favour of the amalgamation agreement, the secretary of each of the amalgamating companies shall certify that fact upon the agreement under the corporate seal thereof; and thereafter the agreement shall be deemed to have been adopted by each of the amalgamating companies unless the amalgamation agreement is annulled in accordance with the procedure prescribed in this section.

• Marginal note:Application to court

  (5) Any shareholders holding at least ten per cent of the shares of any class of shares in an amalgamating company and whose dissent was recorded at a meeting of any class of shareholders called to consider the amalgamation agreement may, within seven days of the final vote on the amalgamation agreement, apply to the chief justice or acting chief justice of the court of the province in which the head office of the company is situated, or to a judge of the court designated by either of them for an order annulling the amalgamation agreement.

• Marginal note:Consideration of application

  (6) The judge to whom an application under subsection (5) is made shall fix a time and place for consideration of the application, which time shall be within fifteen days of the making of such application; and notice thereof shall be given to each of the amalgamating companies, and to the Minister, in such manner as the judge may direct.

• Marginal note:Disposing of application

  (7) The judge considering the application shall hear and determine the matter raised in the application and shall make an order annulling the amalgamation agreement or dismissing the application, and the order of the judge is final and not subject to appeal.

• Marginal note:Agreement annulled by order

  (8) Where an order is made under subsection (7) annulling an amalgamation agreement, the amalgamation agreement is thereby annulled.

• Marginal note:Application of sections 53 to 59

  (9) Where a reduction of capital may result from an amalgamation agreement, sections 53 to 59 apply, mutatis mutandis, as if the amalgamation agreement represented an application for supplementary letters patent confirming a by-law reducing the capital stock of the company.

• Marginal note:Filing amalgamation agreement

  (10) The amalgamating companies shall, within six months of the date of the final vote on the amalgamation agreement, jointly file with the Minister the amalgamation agreement together with a certificate from the secretary of each of the amalgamating companies establishing the percentage of those who voted in favour of the agreement and the percentage of dissentient shareholders, in respect of each class of shares.

• Marginal note:Confirmation by letters patent

  (11) Not less than eight days following the final vote on the amalgamation agreement and upon receipt of evidence that no application was made under this section for the annulment of the amalgamation agreement or that, if such an application was made, it was dismissed, the Minister may issue letters patent confirming the agreement; but the requirement of eight days delay may be dispensed with if the amalgamation agreement has received the approval of more than ninety per cent of the votes of each class of shares cast at each meeting of the amalgamating companies.

• Marginal note:Notice of granting of letters patent

  (12) Notice of the granting of letters patent pursuant to subsection (11) shall forthwith be given by the Minister in the Canada Gazette.

• Marginal note:Effect of confirmation by letters patent

  (13) Upon the issue of letters patent pursuant to subsection (11), the amalgamation agreement has full force and effect and

  • (a) the amalgamating companies are amalgamated and are continued as one company (in this section called the “amalgamated company”) under the name and having the authorized capital and objects specified in the amalgamation agreement; and

  • (b) the amalgamated company possesses all the property, rights, assets, privileges and franchises, and is subject to all the contracts, liabilities, debts and obligations of each of the amalgamating companies.

• Marginal note:Rights of creditors preserved

  (14) All rights of creditors against the property, rights, assets, privileges and franchises of a company amalgamated under this section and all liens upon is property, rights, assets, privileges and franchises are unimpaired by the amalgamation, and all debts, contracts, liabilities and duties of the company thenceforth attach to the amalgamated company and may be enforced against it.

Evidence

Marginal note:Books to be evidence

• 138 (1) All books required by this Part to be kept by the company are, in any action, suit or proceeding against the company or against any shareholder, evidence of all facts purporting to be thereby stated.

• Marginal note:Section 112 not affected

  (2) Nothing in this section limits the meaning or effect of section 112.

Marginal note:Proof of service by letter

139 Proof that any letter properly addressed containing any notice or other document permitted by this Part to be served by post was properly addressed and was put into a post office with postage prepaid, and of the time when it was so put in, and of the time requisite for its delivery in the ordinary course of post, is sufficient evidence of the fact and time of service.

Marginal note:Evidence of by-laws

140 A copy of any by-law of the company under its seal and purporting to be signed by any officer of the company shall, as against any shareholder of the company, be received in evidence as prima facie proof of such by-law in all courts in Canada.

Marginal note:Proof of incorporation

141 In any action or other legal proceeding, the notice in the Canada Gazette of the issue of letters patent or supplementary letters patent under this Part is prima facie proof of all things therein contained, and on production of such letters patent or supplementary letters patent or of any exemplification or copy thereof certified by the Registrar General of Canada, the fact of such notice and publication shall be presumed.

Marginal note:Proof of matters set forth in letters patent

142 Except in any proceeding by scire facias or otherwise for the purpose of rescinding or annulling letters patent or supplementary letters patent issued under this Part, such letters patent or supplementary letters patent, or any exemplification or copy thereof certified by the Registrar General of Canada, are conclusive proof of every matter and thing therein set forth.

Marginal note:Proof by declaration or affidavit

143 Proof of any matter that is necessary to be made under this Part may be made by oath or affirmation or by statutory declaration before any justice of the peace, or any commissioner for taking affidavits, to be used in any of the courts in any of the provinces of Canada, or any notary public, each of whom is hereby authorized and empowered to administer oaths and receive affidavits and declarations for that purpose.

Procedure

Marginal note:Cases where use of seal not necessary

144 Any summons, notice, order, document or proceeding requiring authentication by the company may be signed by any director, manager or other authorized officer of the company, and need not be under the seal of the company.

Marginal note:Service of notices on shareholders

145 In the absence of any other provision in this Part or in the by-laws, notices to be served by the company upon its shareholders may be served either personally or by sending them through the post, by registered mail, addressed to the shareholders at their places of abode as they appear on the books of the company.

Marginal note:Time from which service reckoned

146 A notice or other document served by post by the company on a shareholder shall be deemed to be served at the time when the registered letter containing it would be delivered in the ordinary course of post.

Marginal note:Action between company and shareholders

147 Any description of action may be prosecuted and maintained between the company and any shareholder thereof.

Marginal note:Setting forth incorporation in legal proceedings

148 In any action or other legal proceeding, it shall not be requisite to set forth the mode of incorporation of the company, otherwise than by mention of it under its corporate name as incorporated by virtue of letters patent, or of letters patent and supplementary letters patent, as the case may be.

Offences and Penalties

Marginal note:Penalties not otherwise provided for

149 Every one who, being a director, manager or officer of a company, or acting on its behalf, commits any act contrary to the provisions of this Part, or fails or neglects to comply with any such provision, is, if no penalty for such act, failure or neglect is expressly provided by this Part, liable, on summary conviction, to a fine of not more than one thousand dollars, or to imprisonment for not more than one year, or to both, but no proceeding shall be taken under this section without the consent in writing of the Minister.

Marginal note:Grounds for winding up company

• 150 (1) Notwithstanding any other provisions in this Act where a company

  • (a) fails for two or more consecutive years to hold an annual meeting of its shareholders,

  • (b) fails to comply with the requirements of section 128, or

  • (c) defaults in complying for six months or more with any requirement of section 133,

  the company is liable to be wound up and dissolved under the Winding-up Act upon the application of the Attorney General of Canada to a court of competent jurisdiction for an order that the company be wound up under that Act, which application may be made upon receipt by the Attorney General of Canada of a certificate of the Minister setting forth his opinion that any of the circumstances described in paragraphs (a) to (c) apply to that company.

• Marginal note:Costs of winding-up

  (2) In any application to the court under subsection (1), the court shall determine whether the costs of the winding-up shall be borne by the company or personally by any or all of the directors of the company who were knowingly responsible for the company’s failure or default as described in subsection (1).

Fees and Regulations

Marginal note:Tariff by Governor in Council

• 151 (1) The Governor in Council may establish, alter and regulate the tariff of fees to be paid on application for any letters patent or supplementary letters patent under this Part, on filing any document, on any certificate issued under this Act, on making any return under this Act and on the making of any search of the files of the Department respecting a company.

• Marginal note:Amount may be varied

  (2) The amount of any fee may be varied according to the nature of the company, the amount of the capital stock of the company, or other particulars, as the Governor in Council deems fit.

• Marginal note:Fees to be paid

  (3) No steps shall be taken in the Department toward the issue of any letters patent or supplementary letters patent under this Part, and no by-law, return, prospectus or other document may be filed or deposited in the Department and no certificate may issue therefrom under this Part, until after all fees therefor are duly paid.

Marginal note:Forms and regulations

152 The Governor in Council may, from time to time, prescribe forms and make, vary or repeal regulations for carrying out the purposes of this Part.

PART IICorporations Without Share Capital

Marginal note:Application of Part

153 This Part applies to all corporations incorporated under it and to all corporations incorporated under section 7A of the Companies Act Amending Act, 1917, or to which supplementary letters patent have been issued under subsection (5) of that section and all corporations incorporated under section 8 of the Companies Act, chapter 27 of the Revised Statutes of Canada, 1927, or to which supplementary letters patent have been issued under subsection (5) of that section of that Act.

Marginal note:Application without objects of gain

• 154 (1) The Minister may by letters patent under his seal of office grant a charter to any number of persons, not being fewer than three, who apply therefor, constituting the applicants and any other persons who thereafter become members of the corporation thereby created, a body corporate and politic, without share capital, for the purpose of carrying on, without pecuniary gain to its members, objects, to which the legislative authority of the Parliament of Canada extends, of a national, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional or sporting character, or the like objects.

• Marginal note:No power to issue paper money or for banking

  (2) Nothing in this Part shall be construed to authorize the corporation to issue any note payable to the bearer thereof or any promissory note intended to be circulated as money or as the note of a bank, or to engage in the business of banking or insurance.

Marginal note:Application to be filed

• 155 (1) The applicants for such letters patent, who shall be of the full age of eighteen years and have power under law to contract, shall file in the Department an application signed by each of the applicants and setting forth the following particulars:

  • (a) the proposed name of the corporation;

  • (b) the purposes for which its incorporation is sought;

  • (c) the place within Canada where the head office of the corporation is to be situated;

  • (d) the names in full and the address and calling of each of the applicants; and

  • (e) the names of the applicants, not less than three, who are to be the first directors of the corporation.

• Marginal note:By-laws to accompany application

  (2) The application shall be accompanied by the by-laws, in duplicate, of the proposed corporation, which by-laws shall include provisions upon the following matters:

  • (a) conditions of membership, including societies or companies becoming members of the corporation;

  • (b) mode of holding meetings, provision for quorum, rights of voting and of enacting by-laws;

  • (c) mode of repealing or amending by-laws with special provision that the repeal or amendment of by-laws not embodied in the letters patent shall not be enforced or acted upon until the approval of the Minister has been obtained;

  • (d) appointment and removal of directors, trustees, committees and officers, and their respective powers and remuneration;

  • (e) audit of accounts and appointment of auditors;

  • (f) whether or how members may withdraw from the corporation; and

  • (g) custody of the corporate seal and certifying of documents issued by the corporation.

• Marginal note:By-laws may be embodied in letters patent

  (3) The applicants may ask to have embodied in the letters patent any provision which could under this Part be contained in any by-law of the corporation.

Marginal note:Letters patent to existing corporation

156 Any existing corporation without share capital created by or under any Act of the Parliament of Canada, for any of the purposes or objects set forth in section 154, may apply for the issue of letters patent creating it a corporation under this Part, and upon the issue of such letters patent the provisions of this Part and those provisions of Part I, enumerated in section 157, apply to the corporation created thereby.

Marginal note:Sections of Part I applicable

• 157 (1) The following provisions of Part I apply to corporations to which this Part applies, namely:

  • (a) sections 3 and 4, section 5.6, section 6, sections 9 to 12 and section 15;

  • (b) section 16 (except paragraph (1)(r) thereof) and subsections 20(1), (3), (4) and (5);

  • (c) sections 21 to 24, subsection 25(2), paragraph 25(3)(b), sections 27 to 33, section 43, sections 65 to 73, sections 93, 98, 99, 102 and 106;

  • (d) paragraphs 109(1)(a) to (d); and

  • (e) sections 111.1, 112 to 117, sections 130 to 133 and sections 138 to 152.

• (2) [Repealed, R.S., 1970, c. 10(1st Supp.), s. 26]

• Marginal note:Interpretation

  (3) In construing the sections of Part I made applicable to corporations under this Part,

  shareholder

  actionnaire

  shareholder means a member of such corporation; (actionnaire)

  the company or a company

  la compagnie ou une compagnie

  the company or a company means a corporation to which this Part applies. (la compagnie ou une compagnie)

Marginal note:Sections of Canada Business Corporations Act applicable

• Footnote ^*157.1 (1) Sections 222 to 227 [229 to 234], 229 to 233 [236 to 240] and 235 [242] of the Canada Business Corporations Act apply, with such modifications as the circumstances require, in respect of corporations to which this Part applies.

• Marginal note:Interpretation

  (2) In construing the sections of the Canada Business Corporations Act made applicable to corporations under this Part, “security holder”, or “registered holder or beneficial owner” in relation to a security, means a member of a corporation to which this Part applies.

• Marginal note:Powers of Director

  (3) A Director or Deputy Director appointed under section 253 [260] of the Canada Business Corporations Act may, for the purpose of giving effect to this section with respect to the application of sections 222 to 227 [229 to 234], 229 to 233 [236 to 240] and 235 [242] of that Act, exercise the powers and perform the functions and duties of the Director under those sections.

  • Return to footnote ^*[Note: The Canada Business Corporations Act was renumbered by the 1985 statute revision. By virtue of section 5 of the Revised Statutes of Canada, 1985 Act, the references to that Act in this section are deemed to be references to the sections set out in brackets. The references will be formally changed in a future amendment.]

PART IIISpecial Act Corporations

Marginal note:Annual meetings and reports

158 Sections 102, 133 and 150 apply to any corporation without share capital incorporated by Special Act of the Parliament of Canada for the purpose of carrying on, without pecuniary gain to its members, objects, to which the legislative authority of the Parliament of Canada extends, of a national, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional or sporting character, or the like objects.

Marginal note:Bringing corporations under Part II

• 159 (1) A corporation referred to in section 158 may apply for letters patent under Part II if at the time of its application the corporation is carrying on its affairs, and the Minister may issue letters patent continuing it as a corporation under Part II and thereafter Part II applies to the corporation as if it had been incorporated thereunder.

• Marginal note:Change of powers, etc.

  (2) Where a corporation applies for letters patent under this section, the Minister may, by the letters patent, limit or extend the powers of the corporation, name its directors and change its corporate name, if the applicants so desire.

• Marginal note:Application of sections 9 and 10

  (3) Sections 9 and 10 apply in respect of the issue of letters patent authorized under this section.

PART IVCompanies Clauses

Interpretation

Marginal note:Definitions

160 In this Part, and in any Act incorporating a company to which this Part applies and with which this Part is incorporated as hereinafter provided, and also in all Acts amending such Act,

real property or land

immeuble ou terre

real property or land includes messuages, lands, tenements and hereditaments of any tenure, and all immovable property of any kind; (immeuble ou terre)

shareholder

actionnaire

shareholder means every subscriber for or holder of a share in the capital stock in the company, and includes the personal representatives of the shareholder; (actionnaire)

Special Act

loi spéciale

Special Act means any Act incorporating a company to which this Part applies, and with which this Part is so incorporated, and includes all Acts amending such Act; (loi spéciale)

the company or a company

la compagnie ou une compagnie

the company or a company means a company incorporated under the Special Act; (la compagnie ou une compagnie)

the undertaking

entreprise

the undertaking means the whole of the works and business of whatever kind, that the company is authorized to undertake and carry on. (entreprise)

Application

Marginal note:Application of Part I

• 161 (1) Sections 68 to 84, sections 98 and 99, sections 100 to 100.6, section 102, sections 108.1 to 108.9, section 111.1, sections 114 to 133 and sections 135.1 to 135.93 of Part I apply to companies to which this Part applies, except those loan companies and trust companies to which this Part continues to apply.

• Marginal note:Not to railways, banks or banking

  (2) This Part does not apply to companies for the construction or working of railways or for the business of banking and the issue of paper money, or to any savings bank, or to any insurance company.

• Marginal note:Not to issue notes for circulation

  (3) Nothing in this Part shall be deemed to authorize the company to issue any note payable to the bearer thereof or any promissory note intended to be circulated as money or as the note of a bank or to engage in the business of banking or insurance.

Marginal note:Sections of Canada Business Corporations Act applicable

• Footnote ^*161.1 (1) Sections 222 to 227 [229 to 234], 229 to 233 [236 to 240] and 235 [242] of the Canada Business Corporations Act apply, with such modifications as the circumstances require, in respect of companies to which this Part applies.

• Marginal note:Powers of Director

  (2) A Director or Deputy Director appointed under section 253 [260] of the Canada Business Corporations Act may, for the purpose of giving effect to this section with respect to the application of sections 222 to 227 [229 to 234], 229 to 233 [236 to 240] and 235 [242] of that Act exercise the powers and perform the functions and duties of the Director under those sections.

  • Return to footnote ^*[Note: The Canada Business Corporations Act was renumbered by the 1985 statute revision. By virtue of section 5 of the Revised Statutes of Canada, 1985 Act, the references to that Act in this section are deemed to be references to the sections set out in brackets. The references will be formally changed in a future amendment.]

Marginal note:Companies subject to this Part

• 162 (1) Except as aforesaid, this Part applies to every joint stock company incorporated subsequently to the 22nd day of June 1869, by any Special Act of the Parliament of Canada for any of the purposes or objects to which the legislative authority of the Parliament of Canada extends; and, so far as applicable to the undertaking and not expressly varied or excepted by the Special Act, this Part is incorporated with the Special Act and forms part thereof and shall be construed therewith as forming one Act.

• Marginal note:Exception by charter

  (2) Any of the provisions of this Part may be excepted from incorporation with the Special Act, for which purpose, it is sufficient to provide in the Special Act that the sections or subsections of this Part that it is proposed so to except, referring to them by the numbers they bear, shall not be incorporated with the Special Act, and the Special Act shall be construed accordingly.

General Powers

Marginal note:Powers constructively conferred by charter

• 163 (1) Every company incorporated under any Special Act shall be a body corporate under the name declared in the Special Act, and may acquire, hold, alienate and convey any real property necessary or requisite for the carrying on of the undertaking of such company, and shall be invested with all the powers, privileges and immunities necessary to carry into effect the intention and objects of this Part and of the Special Act, and which are incident to such corporation, or are expressed or included in the Interpretation Act.

• Marginal note:Inter-insurance

  (2) The powers conferred by this section shall be held to include the power to exchange with any person or company reciprocal contracts of indemnity against loss by fire or otherwise under the plan known as “inter-insurance”.

Marginal note:Powers subject to this Part, unless excepted

164 All powers given by the Special Act to the company shall be exercised, subject to the provisions and restrictions contained in this Part except such as are by the Special Act expressly excepted from incorporation therewith.

Directors — their Duties and Powers

Marginal note:To manage company

165 The affairs of the company shall be managed by a board of not less than three directors.

Marginal note:Provisional directors

166 The persons named as such, in the Special Act, shall be the first or provisional directors of the company, and shall remain in office until replaced by directors duly elected in their stead.

Marginal note:Qualification of subsequent directors

167 No person shall be elected as a director unless he is a shareholder owning shares absolutely in his own right, and not in arrear in respect of any call thereon; and the majority of the directors of the company so chosen shall, at all times, be persons resident in Canada, and subjects of Her Majesty, by birth or naturalization.

Marginal note:Election of directors

168 The directors of the company shall be elected by the shareholders, in general meeting of the company assembled, at such times, in such manner, and for such term, not exceeding two years, as the Special Act prescribes, and in default of the Special Act so prescribing, as the by-laws of the company prescribe.

Marginal note:General provisions

169 In the absence of other provisions in that behalf, in the Special Act, or the by-laws of the company,

• (a) the election of directors shall take place yearly, and all the directors then in office shall retire, but, if otherwise qualified, they shall be eligible for re-election;

• (b) election of directors shall be by ballot;

• (c) vacancies occurring in the board of directors may be filled for the remainder of the term, by the directors from among the qualified shareholders of the company;

• (d) the directors shall, from time to time, elect from among themselves a president of the company, and shall also appoint, and may remove at pleasure, all other officers thereof.

Marginal note:Failure to elect directors

170 Where at any time an election of directors is not made or does not take effect at the proper time, the company shall not be held to be thereby dissolved; but such election may take place at any general meeting of the company, duly called for that purpose, and the retiring directors continue in office until their successors are elected.

Marginal note:Powers of directors

171 The directors of the company may, in all things, administer the affairs of the company, and may make or cause to be made for the company, any description of contract which the company may, by law, enter into.

By-laws

Marginal note:Directors may make by-laws

172 The directors may make by-laws not contrary to law or to the Special Act or to this Part, for

• (a) regulating the allotment of shares, the making of calls thereon, the payment thereof, the issue and registration of certificates for shares, the forfeiture of shares for non-payment, the disposal of forfeited shares and of the proceeds thereof, and the transfer of shares;

• (b) the declaration and payment of dividends;

• (c) the number of the directors, their term of service, the amount of their share qualification and their remuneration, if any;

• (d) the appointment, functions, duties and removal of all agents, officers and servants of the company, the security to be given by them to the company and their remuneration;

• (e) the time and place for the holding of the annual meeting of the company, the calling of meetings, regular and special, of the board of directors and of the company, the quorum at meetings of the directors and of the company, the requirements as to proxies, and the procedure in all things at such meetings;

• (f) the imposition and recovery of all penalties and forfeitures admitting of regulation by by-law; and

• (g) the conduct, in all other particulars, of the affairs of the company.

Marginal note:Changing by-laws

173 The directors may repeal, amend or re-enact any such by-law, but every such by-law, repeal, amendment or re-enactment unless in the meantime confirmed at a general meeting of the company duly called for that purpose shall only have force until the next annual meeting of the company and in default of confirmation thereat ceases from the time of such default to have force or effect.

Marginal note:Preference shares by by-law

• 174 (1) The directors of any company, other than a trust company, may also make a by-law for creating and issuing any part of the capital stock as preference shares, giving those shares such preference and priority, as respects dividends and in any other respect, over ordinary shares as in the by-law may be declared.

• Marginal note:Holders may be given control of certain matters

  (2) Such by-law may provide that the holders of such preference shares shall have the right to select a certain proportion therein stated of the board of directors, or may give such holders such other control over the affairs of the company as is considered expedient.

• Marginal note:Sanction by shareholders necessary

  (3) No such by-law has any force or effect whatever until after it has been unanimously sanctioned by a vote of the shareholders present in person or by proxy at a general meeting of the company duly called for considering it and representing two-thirds of the issued capital stock of the company, or until it is unanimously sanctioned in writing by the shareholders of the company.

• Marginal note:Exception when sanctioned by Governor in Council

  (4) Where such by-law is sanctioned by not less than three-fourths in value of the shareholders of the company, the company may, through the Minister, petition the Governor in Council for an order approving the by-law, and the Governor in Council may, if he sees fit, approve thereof, and from the date of such approval the by-law is valid and may be acted upon.

Marginal note:Change of chief place of business by by-law

• 175 (1) Except a company that under its Act of incorporation or any amendment thereto has power to change its chief place of business, a company may, from time to time, by by-law, change the locality of its chief place of business in Canada to any other place in Canada.

• Marginal note:Sanction by shareholders necessary

  (2) No such by-law has any force or effect whatever until after it has been unanimously sanctioned by a vote of the shareholders present in person or by proxy at a general meeting of the company duly called for considering it, and representing two-thirds of the issued capital stock of the company, or until it is unanimously sanctioned in writing by the shareholders of the company.

• Marginal note:Exception when sanctioned by Governor in Council

  (3) Where such by-law is sanctioned in writing by not less than three-fourths in value of the shareholders of the company, the company may, through the Minister, petition the Governor in Council for an order approving the by-law, and the Governor in Council may, on compliance with such terms and conditions, if any, as he directs, approve thereof, and upon such approval, the by-law is valid.

• Marginal note:Publication in Canada Gazette and newspaper necessary

  (4) No such by-law shall be acted upon until two months after a copy of the by-law has been published by the company, once in the Canada Gazette and once in a newspaper published in the city, town or village in or nearest to which the chief place of business of the company is then already situated, and in which a newspaper is published.

Capital Stock and Calls Thereon

Marginal note:Shares to be personal estate

176 A share in the capital stock of the company is personal estate, and is transferable in such manner, and subject to such conditions and restrictions as are prescribed by this Part, or by the Special Act or the by-laws of the company.

Marginal note:Allotment of shares

177 Where the Special Act makes no other definite provision, the shares in the capital stock of the company shall be allotted at such times and in such manner as the directors, by by-law or otherwise, prescribe.

Marginal note:Calls on shares

• 178 (1) The directors of the company may call in and demand from the shareholders thereof respectively, all sums of money by them subscribed at such times and places and in such payments or instalments as the Special Act or this Part requires or allows.

• Marginal note:Interest on amount unpaid

  (2) Interest shall accrue and fall due, at the rate of six per cent per annum, upon the amount of any unpaid call, from the day appointed for payment of such call.

Marginal note:Ten per cent to be called in each year

179 At least ten per cent of the nominal amount of the allotted shares of the company shall, by means of one or more calls, be called in and made payable within one year from the incorporation of the company; and for every year thereafter, at least a further ten per cent of the nominal amount of the allotted shares of the company shall, in like manner, be made payable and called in, until the whole has been so called in.

Marginal note:Forfeiture of shares for default in paying calls

• 180 (1) Where, after such demand or notice as by the Special Act or the by-laws of the company is prescribed, any call made upon any share or shares is not paid within such time as by such Special Act or by-laws is limited in that behalf, the directors, in their discretion, by resolution to that effect, reciting the facts and duly recorded in their minutes, may summarily declare forfeited any shares whereon such payment is not made.

• Marginal note:Forfeited shares go to company

  (2) Such shares thereupon become the property of the company, and may be disposed of as the directors by by-law or otherwise prescribe.

Marginal note:Restriction as to transfer, etc.

181 No share is transferable, until all previous calls thereon have been fully paid, nor reissued until it is declared forfeited for non-payment of a call or calls thereon.

Books of the Company

Marginal note:Contents of books

182 The company shall cause a book or books to be kept by the secretary, or by some other officer specially charged with that duty, wherein shall be kept recorded

• (a) the names, alphabetically arranged, of all persons who are or have been shareholders;

• (b) the address and calling of every such person, while such shareholder;

• (c) the number of shares of each class held by each shareholder;

• (d) the amounts paid in, and remaining unpaid, respectively, on the shares of each shareholder;

• (e) all transfers of shares in their order as presented to the company for entry, with the date and other particulars of each transfer, and the date of the entry thereof; and

• (f) the names, addresses and callings of all persons who are or have been directors of the company, with the several dates at which each became or ceased to be such director.

Marginal note:Powers of directors as to entries of transfers

183 The directors may allow or refuse to allow the entry in any such book, of any transfer of shares whereof the whole amount has not been paid.

Marginal note:Transfer valid only after entry

184 Until entry thereof has been duly made in such book or books, no transfer of shares, unless made by sale under execution or under the decree, order or judgment of a court of competent jurisdiction, is valid for any purpose whatever except for the purpose of exhibiting the rights of the parties thereto toward each other, and of rendering the transferee liable, in the meantime, jointly and severally with the transferor, to the company and its creditors.

Marginal note:Books to be open for inspection

185 Such books shall, during reasonable business hours of every day, except Sundays and holidays, be kept open for the inspection of shareholders and creditors of the company, and their personal representatives, at the head office or chief place of business of the company, and every shareholder, creditor or personal representative may make extracts therefrom.

Offences and Penalties

Marginal note:Refusing to permit inspection

186 Any director, officer or employee of the company who refuses or fails to permit the exercise of the right of inspection and making extracts conferred by section 185, is liable to a penalty of two hundred dollars.

Marginal note:Penalties not otherwise provided for

187 Every one who, being a director, manager or officer of a company or acting on its behalf, commits any act contrary to the provisions of this Part, or fails or neglects to comply with any such provision, is, if no penalty for such act, failure or neglect is expressly provided by this Part, liable, on summary conviction, to a fine of not more than one thousand dollars, or to imprisonment for not more than one year, or to both, but no proceeding shall be taken under this section without the consent in writing of the Minister.

Shareholders’ Liability

Marginal note:Liability of shareholders to creditors

• 188 (1) Every shareholder is, until the whole amount of his shares has been paid up, individually liable to the creditors of the company to an amount equal to that not paid thereon, but he is not liable to an action therefor by any creditor until an execution against the company at the suit of such creditor has been returned unsatisfied in whole or in part.

• Marginal note:Amount recoverable

  (2) The amount due on such execution, not exceeding the amount unpaid by the shareholder on his shares, is the amount recoverable with costs from such shareholder.

Marginal note:Limitation of liability of shareholders

189 The shareholders of the company shall not, as such, be held responsible for any act, default or liability whatever, of the company, or for any engagement, claim, payment, loss, injury, transaction, matter or thing whatever, relating to or connected with the company, beyond the amount unpaid on their respective shares in the capital stock thereof.

Marginal note:Executors, etc., not personally liable

• 190 (1) No executor, administrator, tutor, curator, committee, guardian or trustee who is entered on the books of the company as a shareholder and therein described as representing in such capacity a named estate, trust or person, is personally liable in respect of the share that he so represents, notwithstanding any neglect or omission on the part of the company to enter the proper description in its books; but the estate or person so represented continues to be liable as if the testator, intestate, minor, ward, lunatic or interdicted person, cestui que trust or other person were entered in the books of the company as the holder of the share.

• Marginal note:Mortgagee not personally liable

  (2) No mortgagee of any share in the company or person holding such share as collateral security, notwithstanding that the mortgagee or other person is entered on the books of the company as the holder of the share, is personally liable in respect of that share, if the mortgagee or other person is described in the books of the company as representing a named mortgagor or person giving the collateral security, notwithstanding any neglect or omission on the part of the company to enter the proper description in its books, but the mortgagor or other person giving the collateral security is liable, as if he were entered on the books of the company, as the holder of the share.

• Marginal note:“Mortgagee”

  (3) In this section “mortgagee” includes a trustee for holders of debentures.

Meetings and Voting

Marginal note:Arrears prevent voting

191 No shareholder who is in arrear in respect of any call shall vote at any meeting of the company.

Marginal note:Notice of general meetings

192 In the absence of other provisions in that behalf in the Special Act or the by-laws of the company, notice of the time and place for holding general meetings of the company shall be given at least ten days previously thereto, in some newspaper published at the place in which the chief place of business of the company is situated, or if there is no newspaper there published, then in the newspaper published nearest thereto.

Marginal note:As many votes as shares

193 In the absence of other provisions, in manner aforesaid, every shareholder is entitled to as many votes at all general meetings of the company as he owns shares in the company, and may vote by proxy.

Marginal note:Mortgagor may vote

• 194 (1) Notwithstanding that a mortgagee of any share in the company, or other person holding such share as collateral security, is entered on the books of the company as the holder of that share, if the mortgagee or other person is described in the books of the company as representing a named mortgagor or person giving the collateral security, the mortgagor or other person giving such collateral security is entitled to vote in respect of the share, in person or by proxy, at any meeting of shareholders of the company at which the share carries voting rights.

• Marginal note:Person entered as holder of share entitled to vote

  (2) Where a person is entered on the books of a company as the holder of any share in the company, then, notwithstanding that he is a mortgagee of the share or holds the share as collateral security, unless he is described in the books of the company as representing a named mortgagor or person giving the collateral security, the person so entered on the books of the company as the holder of the share is entitled to vote in respect of the share, in person or by proxy, at any meeting of shareholders of the company at which the share carries voting rights.

Marginal note:Special meetings may be called by shareholders

195 Shareholders who hold one-quarter in value of the subscribed shares of the company may, at any time, by written requisition signed by them, call a special general meeting of the company for the transaction of any business specified in such requisition, and in the notice made and given for the purpose of calling such meeting.

Preference Shares

Marginal note:Holders of preference shares

• 196 (1) Holders of preference shares, under the provisions of this Part, are shareholders within the meaning of this Part, and in all respects possess the rights and are subject to the liabilities of shareholders within the meaning of this Part.

• Marginal note:Entitled to preference given

  (2) In respect of dividends and in any other respect declared by by-law creating and issuing any part of the capital stock of the company as preference shares under the provisions of this Part, holders of preference shares are as against the ordinary shareholders entitled to the preference and rights given by by-law of the company in that behalf.

Marginal note:Saving of creditors’ rights

197 No provision in this Part as to the creation of preference shares and no by-law authorizing the creation of such shares and nothing done under or in pursuance of any such provision or by-law, affects or impairs the rights of creditors of the company.

Contracts

Marginal note:Contracts by agents and officers

• 198 (1) Every contract, agreement, engagement or bargain made, and every bill of exchange drawn, accepted or endorsed, and every promissory note and cheque made, drawn or endorsed on behalf of the company, by any agent, officer or servant of the company, within the apparent scope of his authority as such agent, officer or servant, is binding upon the company.

• Marginal note:Affixing seal unnecessary

  (2) In no case is it necessary to have the seal of the company affixed to any such contract, agreement, engagement, bargain, bill of exchange, promissory note or cheque, or to prove that the same was made, drawn, accepted or endorsed, as the case may be, in pursuance of any by-law or special vote or order.

• Marginal note:Agent of officer not liable

  (3) The person so acting as agent, officer or servant of the company, shall not be thereby subjected individually to any liability whatever to any third person therefor.

Trusts

Marginal note:Company not liable

• 199 (1) The company is not bound to see to the execution of any trust, whether express, implied or constructive, in respect of any share.

• Marginal note:Receipt of shareholder a discharge

  (2) The receipt of the shareholder in whose name any share stands in the books of the company is a valid and binding discharge to the company for any dividend or money payable in respect of that share, and whether or not notice of the trust has been given to the company.

• Marginal note:Application of money

  (3) The company is not bound to see to the application of the money paid upon such receipt.

Liability of Directors

Marginal note:Declaring and paying dividends when company is insolvent

• 200 (1) Where the directors of the company declare and pay any dividend when the company is insolvent, or any dividend the payment of which renders the company insolvent, or diminishes the capital thereof, they are jointly and severally liable, as well to the company as to the individual shareholders and creditors thereof, to the amount of any dividends so declared and paid, for the debts of the company then existing, and for any debts thereafter contracted during their continuance in office respectively.

• Marginal note:Exoneration

  (2) Where any director, present when a dividend mentioned in subsection (1) is declared, forthwith requests the entry on the minutes of the board of directors of his protest against the dividend, or where any director, then absent, within one week after he becomes aware of such declaration and is able to do so, delivers to the president, secretary or other officer of the company his protest against the dividend, and within eight days thereafter delivers or mails by registered letter a duplicate copy of his protest to the Minister, such director may thereby, and not otherwise, exonerate himself from such liability.

Marginal note:Transfer of shares to person of insufficient means

• 201 (1) Whenever entry is made in the company’s books of any transfer of shares not fully paid-up, to a person who is not apparently of sufficient means to fully pay up such shares, the directors are jointly and severally liable to the company and its creditors in the same manner and to the same extent as the transferring shareholder except for such entry, would have been liable.

• Marginal note:Exoneration

  (2) Where any director, present when such entry is allowed, forthwith, or where any director, then absent, within one week after he becomes aware of such entry and is able to do so, delivers to the secretary or other officer of the company his written protest against the transfer and within eight days thereafter causes his protest to be notified by a registered letter to the Minister, such director shall thereby, and not otherwise, exonerate himself from such liability.

Marginal note:Liability in case of loans by company to shareholders

202 Where any loan is made by the company to any shareholder in violation of this Part, all directors and other officers of the company who make the loan or assent thereto are jointly and severally liable to the amount of such loan with interest to the company and also to creditors of the company, for all debts of the company then existing or contracted from the time of the making of such loan to that of the repayment thereof.

Marginal note:Contracts to indicate corporate liability

203 Every director, manager or officer of the company, and every person on its behalf, who signs or authorizes to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque, order for money or goods, or any written contract or undertaking whatever wherein its name is not mentioned in legible characters in such manner as to indicate clearly that the bill of exchange, promissory note, endorsement, cheque, order for money or goods, or written contract or undertaking, as the case may be, is the obligation or act of the company, is personally liable to the holder of any such bill of exchange, promissory note, cheque, or order for money or goods for the amount thereof, unless the amount is duly paid by the company or upon such written contract or undertaking, unless that contract or undertaking is duly performed or carried out by the company.

Marginal note:Liability of directors for wages unpaid

• 204 (1) The directors of the company are jointly and severally liable to the clerks, labourers, servants and apprentices thereof, for all debts, not exceeding six months wages due for services performed for the company while they are such directors respectively, but no director is liable to an action therefor, unless the company has been sued for the debt within one year after the debt became due, nor unless such director is sued therefor within one year from the time when he ceased to be a director, nor unless an execution against the company at the suit of such clerk, labourer, servant or apprentice is returned unsatisfied in whole or in part.

• Marginal note:Amount recoverable

  (2) The amount unsatisfied on such execution is the amount recoverable with costs from the directors.

Use of Funds

Marginal note:No loan to shareholders

205 No company shall loan any of its funds to any shareholder.

Marginal note:Purchase of shares in other companies

206 No company shall use any of its funds in the purchase of shares in any other corporation except to the extent that such purchase is specially authorized by the Special Act.

Procedure

Marginal note:Enforcement of payment of calls

207 The company may enforce payment of all calls and interest thereon, by action in any court of competent jurisdiction.

Marginal note:Form of action