PART VIICorporate Governance (continued)
Marginal note:Derivative action
318 (1) Subject to subsection (2), a complainant or the Superintendent may apply to a court for leave to bring an action under this Act in the name and on behalf of an association or any of its subsidiaries, or to intervene in an action under this Act to which the association or a subsidiary of the association is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the association or the subsidiary.
Marginal note:Conditions precedent
(2) No action may be brought and no intervention in an action may be made under subsection (1) by a complainant unless the court is satisfied that
(a) the complainant has, not less than 14 days before bringing the application or as otherwise ordered by the court, given notice to the directors of the association or the association’s subsidiary of the complainant’s intention to apply to the court under subsection (1) if the directors of the association or the association’s subsidiary do not bring, diligently prosecute or defend or discontinue the action;
(b) the complainant is acting in good faith; and
(c) it appears to be in the interests of the association or the subsidiary that the action be brought, prosecuted, defended or discontinued.
Marginal note:Notice to Superintendent
(3) A complainant under subsection (1) shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.
- 1991, c. 48, s. 318
- 2005, c. 54, s. 201
Marginal note:Powers of court
319 (1) In connection with an action brought or intervened in under subsection 318(1), the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order authorizing the Superintendent, the complainant or any other person to control the conduct of the action;
(b) an order giving directions for the conduct of the action;
(c) an order directing that any amount adjudged payable by a defendant in the action be paid, in whole or in part, directly to former and present members or security holders of the association or of the subsidiary instead of to the association or to the subsidiary; and
(d) an order requiring the association or the subsidiary to pay reasonable legal fees incurred by the Superintendent or the complainant in connection with the action.
(2) Notwithstanding subsection (1), the court may not make any order in relation to any matter that would, under this Act, require the approval of the Minister or the Superintendent.
Marginal note:Status of approval
320 (1) An application made or an action brought or intervened in under subsection 318(1) or section 322 need not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the association or its subsidiary has been or might be approved by the members or shareholders of the association or subsidiary, but evidence of approval by the members or shareholders may be taken into account by the court in making an order under section 319.
Marginal note:Court approval to discontinue
(2) An application made or an action brought or intervened in under subsection 318(1) or section 322 shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on such terms as the court thinks fit and, if the court determines that the interests of any complainant might be substantially affected by any stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant.
Marginal note:No security for costs
Marginal note:Interim costs
(2) In an application made or an action brought or intervened in under subsection 318(1) or section 322, the court may at any time order the association or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable by the court for those interim costs on final disposition of the application or action.
- 1991, c. 48, s. 321
- 2005, c. 54, s. 202(F)
Marginal note:Application to rectify records
322 (1) If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the securities register, the members register or any other record of an association, the association, any member or security holder of the association or any aggrieved person may apply to a court for an order that the register or record be rectified.
Marginal note:Notice to Superintendent
(2) An applicant under this section shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.
Marginal note:Powers of court
(3) In connection with an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order requiring the register or other record of the association to be rectified;
(b) an order restraining an association from calling or holding a meeting or paying a dividend before the rectification;
(c) an order determining the right of a party to the proceedings to have the party’s name entered or retained in, or deleted or omitted from, the registers or records of the association, whether the issue arises between two or more members or security holders or alleged members or security holders, or between the association and any member or security holder or alleged member or security holder; and
(d) an order compensating a party who has incurred a loss.
Liquidation and Dissolution
Interpretation and Application
Definition of court
323 For the purposes of subsections 330(1) and 331(1) and (2), sections 332 to 336, subsection 337(1), sections 339 and 341 to 343, subsections 347(3) and (4) and section 352, court means a court having jurisdiction in the place where the association has its head office.
Marginal note:Application of subsection (2) and sections 325 to 352
Marginal note:Staying proceedings on insolvency
(2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve an association shall be stayed if the association is at any time found to be insolvent within the meaning of the Winding-up and Restructuring Act.
- 1991, c. 48, s. 324
- 1996, c. 6, s. 167
Marginal note:Returns to Superintendent
325 A liquidator appointed under this Part to wind up the business of an association shall provide the Superintendent with such information relating to the business and affairs of the association in such form as the Superintendent requires.
Marginal note:No property and no liabilities
Marginal note:Dissolution by letters patent
(2) Where the Minister has received an application under subsection (1) and is satisfied that all the circumstances so warrant, the Minister may issue letters patent dissolving the association.
Marginal note:Effect of letters patent
(3) An association in respect of which letters patent are issued under subsection (2) ceases to exist on the day stated in the letters patent.
Marginal note:Proposing liquidation
Marginal note:Terms must be set out
(2) A notice of any meeting of members at which the voluntary liquidation and dissolution of an association is to be proposed shall set out the terms of the proposal.
328 Where the voluntary liquidation and dissolution of an association is proposed, the association may apply to the Minister for letters patent dissolving the association if authorized by a special resolution of the members and, where the association has issued one or more classes of shares, a special resolution of each class of shareholders.
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