Federal Law–Civil Law Harmonization Act, No. 3 (S.C. 2011, c. 21)
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Assented to 2011-11-29
PART 1AMENDMENTS TO CERTAIN ACTS
R.S., c. C-44; 1994, c. 24, s. 1(F)Canada Business Corporations Act
Marginal note:2001, c. 14, s. 19
23. Paragraph 33(1)(a) of the Act is replaced by the following:
(a) holds the shares in the capacity of a personal representative; and
24. Section 37 of the Act is replaced by the following:
Marginal note:Gift or legacy of shares
37. A corporation may accept from any shareholder a share of the corporation surrendered to it as a gift including, in Quebec, a legacy but may not extinguish or reduce a liability in respect of an amount unpaid on any such share except in accordance with section 38.
Marginal note:2001, c. 14, s. 24(F)
25. Subsections 39(11) and (12) of the French version of the Act are replaced by the following:
Marginal note:Acquittement
(11) Les titres de créance émis, donnés en garantie conformément au paragraphe (12) ou déposés par la société ne sont pas rachetés du seul fait de l’acquittement de la dette en cause.
Marginal note:Acquisition et réémission de titres de créance
(12) La société qui acquiert ses titres de créance peut soit les annuler, soit, sous réserve de tout acte de fiducie ou convention applicable, les réémettre ou les donner en garantie de l’exécution de ses obligations existantes ou futures, sous forme d’hypothèque mobilière, de gage ou de nantissement; l’acquisition, la réémission ou le fait de les donner en garantie ne constitue pas l’annulation de ces titres.
Marginal note:2001, c. 14, s. 27
26. Subsections 45(2) and (3) of the Act are replaced by the following:
Marginal note:Lien or hypothec on shares
(2) Subject to subsection 49(8), the articles may provide that the corporation has a lien or hypothec on a share registered in the name of a shareholder or the shareholder’s personal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act.
Marginal note:Enforcement of lien or hypothec
(3) A corporation may enforce a lien or hypothec referred to in subsection (2) in accordance with its by-laws.
Marginal note:2001, c. 14, s. 135 (Sch., s. 4)(E)
27. Subsection 46(3) of the Act is replaced by the following:
Marginal note:Effect of sale
(3) If shares are sold by a corporation under subsection (1), the owner of the shares immediately before the sale shall by that sale be divested of their interest or right in the shares, and the person who, but for the sale, would be the registered owner of the shares or a person who satisfies the corporation that, but for the sale, they could properly be treated as the registered owner or registered holder of the shares under section 51 shall, from the time of the sale, be entitled to receive only the net proceeds of the sale, together with any income earned on the proceeds from the beginning of the month next following the date of the receipt by the corporation of the proceeds of the sale, less any taxes on the proceeds and any costs of administration of a trust fund constituted under subsection 47(1) in relation to the constitution of the fund.
Marginal note:2001, c. 14, s. 29
28. (1) The definitions “adverse claim”, “fiduciary” and “purchaser” in subsection 48(2) of the Act are replaced by the following:
“adverse claim”
« opposition »
“adverse claim” includes a claim that a transfer was or would be wrongful or that a particular adverse person is the owner of or has an interest or right in the security;
“fiduciary”
« représentant »
“fiduciary” means any person who acts in a fiduciary capacity or as the administrator of the property of others and includes a personal representative of a deceased person;
“purchaser”
« acquéreur »
“purchaser” means a person who takes an interest or right in a security by sale, mortgage, hypothec, pledge, issue, reissue, gift or any other voluntary transaction;
(2) The definition “issuer” in subsection 48(2) of the Act is amended by striking out “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) that, in Quebec, issues securities that confer directly or indirectly rights in its property, or
(c) that, elsewhere in Canada, directly or indirectly creates fractional interests in its rights or property and that issues securities as evidence of the fractional interests;
(3) Paragraph (d) of the definition “security” or “security certificate” in subsection 48(2) of the Act is replaced by the following:
(d) evidence of a share, participation or other interest or right in or obligation of a corporation;
Marginal note:2001, c. 14, s. 30(4)
29. (1) The portion of subsection 49(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Restrictions
(8) No restriction, charge, lien, hypothec, agreement or endorsement described in the following paragraphs is effective against a transferee of a security, issued by a corporation or by a body corporate before the body corporate was continued under this Act, who has no actual knowledge of the restriction, charge, lien, hypothec, agreement or endorsement unless it or a reference to it is noted conspicuously on the security certificate:
Marginal note:2001, c. 14, s. 30(4)
(2) Paragraph 49(8)(b) of the Act is replaced by the following:
(b) a charge, lien or hypothec in favour of the corporation;
(3) Subsection 49(12) of the Act is replaced by the following:
Marginal note:Transitional
(12) If a body corporate continued under this Act has outstanding security certificates, and if the words “private company” appear on the certificates, those words are deemed to be a notice of a restriction, lien, hypothec, agreement or endorsement for the purpose of subsection (8).
(4) Paragraph 49(16)(a) of the English version of the Act is replaced by the following:
(a) the scrip certificates become void or, in Quebec, null if not exchanged for a share certificate representing a full share before a specified date; and
30. (1) Subsection 50(2) of the English version of the Act is replaced by the following:
Marginal note:Central and branch registers
(2) A corporation may appoint an agent or mandatary to maintain a central securities register and branch securities registers.
(2) The portion of subsection 50(7) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Destruction of certificates
(7) A corporation, its agent or mandatary, or a trustee as defined in subsection 82(1) is not required to produce
Marginal note:2001, c. 14, s. 31(1)
31. (1) Paragraph 51(2)(a) of the English version of the Act is replaced by the following:
(a) the heir of a deceased security holder, or the personal representative of the heirs, or the personal representative of the estate or succession of a deceased security holder;
Marginal note:2001, c. 14, s. 31(2)
(2) Subsection 51(5) of the Act is replaced by the following:
Marginal note:Persons less than 18 years of age
(5) If a person who is less than 18 years of age exercises any rights of ownership in the securities of a corporation, no subsequent repudiation or avoidance or, in Quebec, annulment or reduction of obligations is effective against the corporation.
(3) The portion of paragraph 51(7)(a) of the Act before subparagraph (ii) is replaced by the following:
(a) the original grant of probate, of letters of administration or, in Quebec, of the probate of the will or of the notarial minutes of the probate, or a copy certified to be a true copy of one of those documents by
(i) the court that granted the probate or letters of administration, or the notary who prepared the minutes of the probate,
(4) Paragraph 51(7)(b) of the Act is replaced by the following:
(b) in the case of transmission by notarial will in Quebec, an authentic copy established in accordance with the laws of that province,
Marginal note:2001, c. 14, s. 31(3)
(5) The portion of subsection 51(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Excepted transmissions
(8) Despite subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration or the probate of the will or the notarial minutes of the probate in respect of the transmission, a personal representative of the deceased holder is entitled, subject to any applicable law relating to the collection of taxes, to become a registered holder or to designate a registered holder, if the personal representative deposits with the corporation or its transfer agent
Marginal note:2001, c. 14, s. 31(3)
(6) Paragraph 51(8)(b) of the Act is replaced by the following:
(b) reasonable proof of the governing laws, of the deceased holder’s interest or right in the security and of the right of the personal representative or the person designated by the personal representative to become the registered holder.
32. Subsection 55(1) of the English version of the Act is replaced by the following:
Marginal note:Notice of defect
55. (1) Even against a purchaser for value without notice of a defect going to the validity of a security, the terms of the security include those stated on the security and those incorporated in it by reference to another instrument or act, statute, rule, regulation or order to the extent that the terms so incorporated do not conflict with the stated terms, but such a reference is not of itself notice to a purchaser for value of a defect going to the validity of the security, even though the security expressly states that a person accepting it admits the notice.
33. Subsection 60(3) of the English version of the Act is replaced by the following:
Marginal note:Limitation of the purchase
(3) A purchaser acquires rights only to the extent of the interest or right purchased.
Marginal note:2001, c. 14, s. 135 (Sch., s. 17(4))(E)
34. Subsection 63(5) of the English version of the Act is replaced by the following:
Marginal note:Warranties of broker
(5) A broker gives to a customer, to the issuer or to a purchaser, as the case may be, the warranties provided in this section and has the rights and privileges of a purchaser under this section, and those warranties of and in favour of the broker acting as an agent or mandatary are in addition to warranties given by the customer and warranties given in favour of the customer.
Marginal note:2001, c. 14, s. 135 (Sch., s. 19(2))(E)
35. (1) Paragraph 65(1)(g) of the English version of the Act is replaced by the following:
(g) to the extent that a person described in paragraphs (a) to (f) may act through an agent or mandatary, the authorized agent or mandatary.
Marginal note:2001, c. 14, s. 135 (Sch., s. 19(4))(E)
(2) Subsection 65(10) of the English version of the Act is replaced by the following:
Marginal note:Failure of fiduciary to comply
(10) Failure of a fiduciary to comply with a controlling instrument or act or with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of a transfer, does not render the fiduciary’s endorsement unauthorized for the purposes of this Part.
36. Subsection 70(3) of the English version of the Act is replaced by the following:
Marginal note:Ownership of part of fungible bulk
(3) If a security is part of a fungible bulk, a purchaser of the security is the owner of a proportionate share in the fungible bulk.
37. Subsection 72(3) of the English version of the Act is replaced by the following:
Marginal note:Remedies
(3) The right to reclaim possession of a security may be specifically enforced, its transfer may be restrained and the security may be impounded or, in Quebec, sequestrated pending litigation.
Marginal note:2001, c. 14, s. 33(F) and s. 135 (Sch., s. 24)(E)
38. Sections 74 and 75 of the Act are replaced by the following:
Marginal note:Seizure of security
74. No seizure of a security or other interest or right evidenced by the security is effective until the person making the seizure obtains possession of the security.
Marginal note:No liability for acts in good faith
75. An agent or mandatary or a bailee who in good faith, including observance of reasonable commercial standards if the agent or mandatary or the bailee is in the business of buying, selling or otherwise dealing with securities of a corporation has received securities and sold, pledged or delivered them, according to the instructions of their principal or mandator, is not liable for conversion or for participation in breach of fiduciary duty although the principal has no right to dispose of them.
39. Paragraph 77(1)(a) of the English version of the Act is replaced by the following:
(a) if the endorsement is by an agent or mandatary, reasonable assurance of authority to sign;
40. Paragraph 78(2)(b) of the English version of the Act is replaced by the following:
(b) the issuer is provided with an indemnity bond sufficient in the issuer’s judgment to protect the issuer and any registrar, transfer agent or other agent or mandatary of the issuer from any loss that may be incurred by any of them as a result of complying with the adverse claim.
41. (1) The portion of subsection 81(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Rights and obligations
81. (1) An authenticating trustee, registrar, transfer agent or other agent or mandatary of an issuer has, in respect of the issue, registration of transfer and cancellation of a security of the issuer,
(2) Subsection 81(2) of the English version of the Act is replaced by the following:
Marginal note:Notice to agent or mandatary
(2) Notice to an authenticating trustee, registrar, transfer agent or other agent or mandatary of an issuer is notice to the issuer with respect to the functions performed by the agent or mandatary.
42. The definitions “trustee” and “trust indenture” in subsection 82(1) of the Act are replaced by the following:
“trustee”
« fiduciaire »
“trustee” means any person appointed as trustee, including the administrator of the property of others, under the terms of a trust indenture to which a corporation is a party and includes any successor trustee;
“trust indenture”
« acte de fiducie »
“trust indenture” means any deed, indenture or other instrument or act, including any supplement or amendment, made by a corporation after its incorporation or continuance under this Act, under which the corporation issues debt obligations and in which a person is appointed as trustee for the holders of the debt obligations.
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