Canadian Telecommunications Common Carrier Ownership and Control Regulations (SOR/94-667)

Short Title

1 These Regulations may be cited as the Canadian Telecommunications Common Carrier Ownership and Control Regulations.

Interpretation

• 2 (1) In these Regulations,

  Act

  Act means the Telecommunications Act; (Loi)

  board

  board means the board of directors of a corporation; (conseil d’administration)

  carrier holding corporation

  carrier holding corporation means

  • (a) a corporation that beneficially owns and controls, in the aggregate and otherwise than by way of security only, not less than 66 2/3 per cent of the issued and outstanding voting shares of a Canadian carrier and that is not otherwise controlled by non-Canadians, or

  • (b) an acquiring corporation as defined in section 18; (société mère d’une entreprise ou société mère)

  depository

  depository means any person who provides centralized facilities for the clearing of trades in securities and is acting in relation to trades in voting shares solely in relation to the payment of funds or the delivery of securities, or both; (dépositaire)

  excess voting shares

  excess voting shares means issued and outstanding voting shares beneficially owned, or controlled, by non-Canadians in an amount greater than

  • (a) 20 per cent of the total issued and outstanding voting shares, in the case of a corporation referred to in subsection 16(1) of the Act, or

  • (b) the percentage of the total issued and outstanding voting shares that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, in the case of a corporation referred to in subsection 16(2) of the Act; (actions avec droit de vote excédentaires)

  holdco excess voting shares

  holdco excess voting shares means issued and outstanding voting shares of a carrier holding corporation beneficially owned, or controlled, by non-Canadians

  • (a) in the case of a carrier holding corporation that purports to be a qualified corporation, in an amount greater than 33 1/3 per cent of the total issued and outstanding voting shares of the carrier holding corporation, or

  • (b) in the case of a carrier holding corporation that is an acquiring corporation as defined in section 18, in an amount greater than the percentage of the total issued and outstanding voting shares of the carrier as defined in that section that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987; (actions avec droit de vote excédentaires de la société mère)

  holdco principal stock exchange

  holdco principal stock exchange means, at any given time, the stock exchange in Canada on which the highest volume of voting shares of a carrier holding corporation is traded; (marché boursier principal de la société mère)

  intermediary

  intermediary means a person or entity, excluding a depository and trustee, that holds a security on behalf of another person or entity; (intermédiaire)

  non-Canadian

  non-Canadian means a person or entity that is not a Canadian; (non-Canadien)

  principal stock exchange

  principal stock exchange means, at any given time, the stock exchange in Canada on which the highest volume of voting shares of a Canadian carrier is traded; (marché boursier principal)

  qualified corporation

  qualified corporation means a corporation in which those of its shareholders who are Canadians beneficially own, and control, in the aggregate and otherwise than by way of security only, not less than 66 2/3 per cent of the issued and outstanding voting shares, and which is not otherwise controlled by non-Canadians; (personne morale qualifiée)

  qualified mutual insurance company

  qualified mutual insurance company means a mutual insurance company the head office and principal place of business of which are in Canada, and not less than 80 per cent of the board and of each committee of its directors of which are individual Canadians; (société mutuelle d’assurance qualifiée)

  qualified partnership

  qualified partnership means a partnership in which those of its partners who are Canadians beneficially own, and control, in the aggregate and otherwise than by way of security only, not less than 66 2/3 per cent of the beneficial interest in the partnership, and which is not otherwise controlled by non-Canadians; (société de personnes qualifiée)

  qualified pension fund society

  qualified pension fund society means a pension fund society the majority of whose members of its board of directors are individual Canadians, and that is established under An Act to Incorporate the Pension Fund Society of the Dominion Bank, S.C. 1887, c. 55; S.C. 1956, c. 66, An Act to Incorporate the Pension Fund Society of the Bank of Montreal, S.C. 1885, c. 13, the Pension Fund Society Act or any provincial legislation relating to the establishment of pension fund societies; (société de caisse de retraite qualifiée)

  qualified trust

  qualified trust means a trust in which Canadians have not less than 66 2/3 per cent of the beneficial interest, and of which a majority of the trustees are Canadians; (fiducie qualifiée)

  voting share

  voting share means a share of any class of shares of a corporation carrying voting rights under all circumstances or by reason of an event that has occurred and is continuing or by reason of a condition that has been fulfilled, and includes

  • (a) a security that is convertible into such a share at the time a calculation of the percentage of shares owned and controlled by Canadians is made, and

  • (b) an option or a right to acquire such a share, or the security referred to in paragraph (a), that is exercisable at the time the calculation referred to in that paragraph is made. (action avec droit de vote)

• (2) In these Regulations and for the purposes of section 16 of the Act,

  Canadian

  Canadian means

  • (a) a citizen within the meaning of subsection 2(1) of the Citizenship Act who is ordinarily resident in Canada,

  • (b) a permanent resident within the meaning of subsection 2(1) of the Immigration Act who is ordinarily resident in Canada, and has been ordinarily resident in Canada for not more than one year after the date on which that person first became eligible to apply for Canadian citizenship,

  • (c) a Canadian government, whether federal, provincial or local, or an agency thereof,

  • (d) a corporation without share capital, where a majority of its directors or officers, as the case may be, are appointed or designated, either by their personal names or by their names of office, by one or more of

    • (i) a federal or provincial statute or regulations made under a federal or provincial statute,

    • (ii) the Governor in Council or the lieutenant governor in Council of a province, or

    • (iii) a minister of the Crown in right of Canada or of a province,

  • (e) a qualified corporation,

  • (f) a qualified trust,

  • (g) a qualified mutual insurance company,

  • (h) a qualified partnership, or

    • (i) a qualified pension fund society. (Canadien)

General

3 For the purposes of these Regulations,

• (a) where one or more joint beneficial owners of, or persons or entities jointly controlling, voting shares of a corporation are non-Canadians, the voting shares shall be considered to be beneficially owned, or controlled, as the case may be, by non-Canadians;

• (b) the beneficial interest of a beneficiary in a trust shall be calculated

  • (i) if such interest is vested, in the proportion that the fair market value of such interest in the trust’s business, property and assets bears to the fair market value of all of the trust’s business, property and assets that is vested in beneficiaries thereof, and

  • (ii) if such interest is discretionary, in the proportion of the fair market value of all of the trust’s business, property and assets the disposition of which is discretionary, that the beneficiary bears to the total number of beneficiaries whose interests in the trust are discretionary;

• (c) the beneficial interest of a partner in a partnership shall be calculated as the proportion that the fair market value of such interest in the partnership bears to the fair market value of all of the interests in the partnership; and

• (d) where a person or entity who was a Canadian ceases to be a Canadian on any day, or is considered to be a non-Canadian pursuant to subsection 7(5) or 19(5), the day of registration of the voting shares beneficially owned, or controlled, by the person or entity shall be considered to be the earliest of the day on which

  • (i) the person or entity amends its address in the security register or other applicable book or record referred to in these Regulations, to an address outside Canada,

  • (ii) a director or officer of the corporation acquires knowledge that the person or entity is no longer a Canadian, or

  • (iii) the person or entity is considered to be a non-Canadian pursuant to subsection 7(5) or 19(5).

Determination of Voting Shares Held by Canadians

• 4 (1) For the purpose of determining whether voting shares are beneficially owned by a person or entity who is a Canadian, and the number of such shares, there may included in the determination, without requiring further evidence that the person or entity is a Canadian,

  • (a) subject to subsection (3), voting shares registered in the name of a shareholder, other than a depository, whose latest address as shown in the security register or on the books or records of the corporation or the corporation’s transfer agent or registrar is in Canada;

  • (b) subject to subsection (2), voting shares held by a depository, whose head office and principal place of business are in Canada, on behalf of the person or entity and in respect of which the depository has filed an affidavit or declaration, at any time within the 12 months preceding the determination, that states the number of voting shares that are held by the depository on behalf of the person or entity and that the latest address of the person or entity, as shown on the books or records of the depository, is in Canada; and

  • (c) subject to subsection (3), voting shares of a shareholder who has established, by way of an affidavit or declaration that is filed within the 12 months preceding the determination, that the shareholder is a Canadian.

• (2) Where the directors of a corporation have information concerning the beneficial ownership of shares that are held by a depository referred to in paragraph (1)(b) that causes the directors to believe that, at the time of the determination referred to in subsection (1), the shareholder who is the beneficial owner of the voting shares is not a Canadian or is considered to be a non-Canadian pursuant to these Regulations, the directors shall not include those voting shares in the determination until the directors have received an affidavit or declaration that establishes that the beneficial owner thereof is a Canadian and continues to be considered by these Regulations to be a Canadian.

• (3) Where the directors of a corporation have information concerning the beneficial ownership of the voting shares by a shareholder referred to in paragraph (1)(a) or (c), that causes the directors to believe that, at the time of the determination referred to in subsection (1), the shareholder who is the beneficial owner of the voting shares is not a Canadian or is considered to be a non-Canadian pursuant to these Regulations, the directors shall not include the voting shares of the shareholder in the determination until the directors have received an affidavit or declaration that establishes that the beneficial owner thereof is a Canadian and continues to be considered by these Regulations to be a Canadian.

Qualified Corporation Status

• 5 (1) During the six-month period immediately following the coming into force of these Regulations,

  • (a) any corporation that does not have actual knowledge that those of its shareholders who are non-Canadians beneficially own, and control, in the aggregate and otherwise than by way of security only, more than 33 1/3 per cent of its issued and outstanding voting shares, shall be considered to be a qualified corporation for that period; and

  • (b) any corporation referred to in subsection 17(4) that does not have actual knowledge that those of its shareholders who are non-Canadians beneficially own, and control, in the aggregate and otherwise than by way of security only, more than the appropriate maximum percentage of its issued and outstanding voting shares that is authorized pursuant to that subsection, shall be considered, for that period, to satisfy the criteria respecting the ownership and control of the corporation that are set out in that subsection.

• (2) Where a corporation that has established, by affidavit or declaration filed within the previous twelve-month period, that it is a qualified corporation, acquires knowledge that those of its shareholders who are Canadians beneficially own, and control, in the aggregate and otherwise than by way of security only, less than 66 2/3 per cent of its issued and outstanding voting shares, the corporation shall be considered to be a qualified corporation for a period of 12 months from the date it first acquires knowledge of the decrease in the proportion of voting shares below that percentage, notwithstanding that the affidavit or declaration would otherwise be valid for a longer period pursuant to subsection 7(4), if

  • (a) at no time during that 12-month period the proportion of voting shares beneficially owned, and controlled, by Canadians decreases more than five per cent from 66 2/3 per cent; and

  • (b) the corporation, immediately on becoming aware that it is deemed to be a qualified corporation pursuant to this section, so advises in writing the Canadian carrier.

• (3) A corporation referred to in subsection (2), immediately on becoming aware that it is no longer deemed to be a qualified corporation pursuant to that subsection, shall so advise in writing the Canadian carrier.

PART ICanadian Carriers

Interpretation

6 In this Part, registered holder means the person or entity in whose name shares of a Canadian carrier are registered on the carrier’s security register or on the books or records of the carrier’s transfer agent or registrar. (détenteur inscrit)

Affidavits or Declarations

• 7 (1) A director of a Canadian carrier who requires information for the purposes of determining whether the Canadian carrier is eligible to operate pursuant to section 16 of the Act may, with the authorisation of the board, make a written request in accordance with subsection (2) to

  • (a) a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (v), the identity of the beneficial owner of all of the voting shares in the Canadian carrier of which the shareholder is the registered holder,

    • (ii) whether the beneficial owner is a Canadian,

    • (iii) the date of the registration or acquisition of the voting shares,

    • (iv) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (v) where the shareholder is unable, for reasons of confidentiality, to disclose the identity of the beneficial owner referred to in subparagraph (i), that the shareholder is unable to so disclose the identity but has determined that the beneficial owner is or is not a Canadian;

  • (b) a shareholder of a corporation that is, directly or indirectly, a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (v), the identity of the beneficial owner of all of the voting shares in the corporation of which the shareholder is the holder of record,

    • (ii) whether the beneficial owner is a Canadian,

    • (iii) the date of registration or acquisition of the voting shares,

    • (iv) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (v) where the shareholder is unable, for reasons of confidentiality, to disclose the identity of the beneficial owner referred to in subparagraph (i), that the shareholder is unable to so disclose the identity but has determined that the beneficial owner is or is not a Canadian;

  • (c) a trustee of a trust that is, directly or indirectly, a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity of each trustee,

    • (ii) the beneficial interest of each beneficiary in the trust,

    • (iii) whether each beneficiary and trustee is a Canadian,

    • (iv) the date of the registration or acquisition of the voting shares held by the trust,

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (vi) where the trustee is unable, for reasons of confidentiality, to disclose the identity of a trustee referred to in subparagraph (i), that the trustee is unable to so disclose the identity but has determined that the trustee is or is not a Canadian;

  • (d) a mutual insurance company that is, directly or indirectly, a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) the location of its head office and principal place of business,

    • (ii) the identity of each member of its board and of each member of each committee of directors,

    • (iii) which members of the board are Canadians,

    • (iv) the date of the registration or acquisition of the voting shares held by the mutual insurance company, and

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act;

  • (e) a partnership, that is, directly or indirectly, a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity of each partner,

    • (ii) which partners are Canadians,

    • (iii) the beneficial interest of each partner,

    • (iv) the date of the registration or acquisition of the voting shares held by the partnership,

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (vi) where the partnership is unable, for reasons of confidentiality, to disclose the identity of a partner referred to in subparagraph (i), that the partnership is unable to so disclose the identity but has determined that the partner is or is not a Canadian;

  • (f) a pension fund society that is, directly or indirectly, a shareholder of the Canadian carrier, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) the location of its head office and principal place of business,

    • (ii) the identity of each member of its board and of each member of each committee of directors,

    • (iii) which members of the board are Canadians,

    • (iv) the date of the registration or acquisition of the voting shares held by the pension fund society, and

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act;

  • (g) a depository, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity and latest address on the books or records of the depository of each person or entity on whose behalf it holds voting shares of the Canadian carrier or a corporation that is, directly or indirectly, a shareholder of the Canadian carrier,

    • (ii) the number of voting shares that the depository holds on behalf of each person or entity,

    • (iii) whether each person or entity is a Canadian,

    • (iv) the date of registration of the transfer of the voting shares of the Canadian carrier or of a corporation that is, directly or indirectly, a shareholder of the Canadian carrier on the books or records of the depository,

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (vi) where the depository is unable, for reasons of confidentiality, to disclose the identity of a person or entity referred to in subparagraph (i), that the depository is unable to so disclose the identity but has determined that the person or entity is or is not a Canadian; and

  • (h) an intermediary, for an affidavit or declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity and latest address on the records of the intermediary of each person or entity on whose behalf it holds voting shares of the Canadian carrier or a corporation that is, directly or indirectly, a shareholder of the Canadian carrier,

    • (ii) the number of the voting shares that the intermediary holds on behalf of each person or entity,

    • (iii) whether each person or entity is a Canadian,

    • (iv) the date of registration of the transfer of the voting shares of the Canadian carrier or of a corporation that is, directly or indirectly, a shareholder of a Canadian carrier on the books or records of the intermediary,

    • (v) any other information that the director requests in order to determine whether the carrier is eligible to operate pursuant to section 16 of the Act, and

    • (vi) where the intermediary is unable, for reasons of confidentiality, to disclose the identity of a person or entity referred to in subparagraph (i), that the intermediary is unable to so disclose the identity but has determined that the person or entity is or is not a Canadian.

• (2) A request for an affidavit or a declaration made pursuant to subsection (1) shall

  • (a) be given by mail or personal service; and

  • (b) specify a date that is not earlier than 30 days and not later than 60 days after the giving of the request by which the shareholder, trustee, mutual insurance company, partnership, pension fund society, depository or intermediary shall comply with the request.

• (3) A person or entity to whom a request for an affidavit or declaration is made pursuant to subsection (1) shall file the affidavit or declaration no later than the date specified pursuant to paragraph (2)(b).

• (4) An affidavit or a declaration filed pursuant to subsection (3) shall be valid for a period of 12 months from the date of filing with the Canadian carrier.

• (5) Where a director of a Canadian carrier requests an affidavit or a declaration under this section and the person or entity does not file the affidavit or declaration by the date set out in the request, the voting shares of the person or entity in the Canadian carrier shall, effective on the day following the date set out in the request and until the affidavit or declaration is filed, be considered to be beneficially owned by a non-Canadian.

Refusal to Subscribe, Issue, Transfer or Acquire Shares

• 8 (1) A Canadian carrier may refuse to accept any subscription for, issue, register the transfer of, purchase or otherwise acquire, any of its voting shares unless a declaration is submitted to the Canadian carrier and the Canadian carrier determines that the effect of the information appearing on the declaration, together with any other information in any books or records of the Canadian carrier, its transfer agent or its registrar is that the subscription, issue, transfer, purchase or acquisition would not result in

  • (a) the percentage of the total voting shares that are beneficially owned, and controlled by, non-Canadians exceeding 20 per cent, in the case of a corporation referred to in subsection 16(1) of the Act; or

  • (b) the percentage of the total voting shares that are beneficially owned, and controlled by, non-Canadians exceeding the percentage that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, in the case of a corporation referred to in subsection 16(2) of the Act.

• (2) Where the board of a Canadian carrier has information concerning the beneficial ownership, or control, of the Canadian carrier that causes the board to believe that the Canadian carrier is not eligible to operate pursuant to section 16 of the Act and the Canadian carrier intends to take further action pursuant to these Regulations, the Canadian carrier shall, in respect of its voting shares that are publicly traded, immediately make a public announcement to this effect, whether by press release, newspaper advertisement or by any other manner that is reasonably expected to inform the markets in which voting shares are traded, and shall immediately forward a copy of the announcement to the Commission.

Suspension of Voting Rights

• 9 (1) The Canadian carrier may, in accordance with section 10, suspend all rights of a shareholder to vote that would otherwise be attached to any voting shares beneficially owned, or controlled, or considered by these Regulations to be beneficially owned, or controlled, by non-Canadians, in the order referred to in subsection (2), so that the proportion of the voting shares beneficially owned, or controlled, or considered by these Regulations to be beneficially owned, or controlled, by non-Canadians and with respect to which voting rights are not suspended, is reduced to

  • (a) not more than 20 per cent of the total issued and outstanding voting shares, in the case of a corporation referred to in subsection 16(1) of the Act; or

  • (b) a percentage that is equal to, or within five percent of, the percentage of the voting shares of the Canadian carrier that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, in the case of a corporation referred to in subsection 16(2) of the Act.

• (2) The voting rights referred to in subsection (1) shall be suspended in an order inverse to the date of registration, which shall be considered to be

  • (a) the date of registration of the voting shares on the security register of the Canadian carrier or on the books or records of its transfer agent or registrar; or

  • (b) where the shares are held by an intermediary or a depository, the date of the registration of the transfer of the voting shares on its books or records.

Notice of Excess Voting Shares

• 10 (1) Where the board of a Canadian carrier has information concerning the beneficial ownership and control of the Canadian carrier that causes the board to believe that some of the Canadian carrier’s voting shares are excess voting shares and the Canadian carrier intends to take further action pursuant to these Regulations, the Canadian carrier shall immediately send a notice to the registered holders of those voting shares that are chosen in the order referred to in subsection 9(2).

• (2) A Canadian carrier shall, in the notice referred to in subsection (1),

  • (a) specify the reasons why the board of the Canadian carrier believes that the voting shares referred to in that subsection are excess voting shares;

  • (b) where the Canadian carrier wishes the registered holder to sell or otherwise dispose of the excess voting shares, specify a date, that is not earlier than 60 days and not later than 180 days after the date of the notice, by which the registered holder shall

    • (i) sell or otherwise dispose of the excess voting shares in favour of Canadians and provide written evidence of the sale or other disposition, or

    • (ii) provide written evidence that no such sale or other disposition of excess voting shares is required; and

  • (c) where the board wishes to suspend the voting rights with respect to the excess voting shares identified in the notice, specify that, unless the registered holder complies with the requirement to sell or otherwise dispose of the shares or to provide written evidence pursuant to subparagraph (b)(ii), the voting rights shall be suspended from the date by which the sale or other disposition should have taken place or the evidence should have been provided, and that a sale of those voting shares by the Canadian carrier in accordance with section 11 or a repurchase or redemption by the Canadian carrier in accordance with section 12 may result, in each case without further notice to the registered holder.

• (3) Where, after the sending of a notice referred to in subsection (1), the registered holder provides the Canadian carrier with written evidence that no sale or other disposition of excess voting shares is required, the board of the Canadian carrier shall, within 10 days after the receipt of the evidence, assess the evidence and determine whether the registered holder’s voting shares are excess voting shares.

• (4) Where the board of the Canadian carrier determines that shares are not excess voting shares and that no sale or other disposition of the voting shares is required, the Canadian carrier shall so advise the registered holder and the Commission immediately.

• (5) Where the board of the Canadian carrier determines that the shares are excess voting shares and that a sale or other disposition of excess voting shares is required in order to reduce the total number of voting shares of the carrier that are excess voting shares to zero, in the case of a carrier referred to in subsection 16(1) of the Act, or to zero or to any percentage such that the percentage of the voting shares that is beneficially owned, and controlled, by non-Canadians is within five per cent of the percentage of the voting shares of the corporation that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, in the case of a carrier referred to in subsection 16(2) of the Act, the Canadian carrier shall send a notification to the registered holder of the excess voting shares,

  • (a) informing the registered holder of the board’s determination;

  • (b) confirming that the shares are to be sold or otherwise disposed of by the date specified in the notification; and

  • (c) specifying a further date, that is not later than 60 days after the date of the notification, by which the registered holder shall provide written evidence to the Canadian carrier of the sale or other disposition, failing which the rights of the shareholder to vote with respect to the excess voting shares will be suspended from that further date.

• (6) The Canadian carrier shall send to the Commission a copy of

  • (a) the notice referred to in subsection (1) and the notification referred to in subsection (5), at the same time that it is sent to the registered holder; and

  • (b) the written evidence referred to in subsections (2), (3) and (5), immediately on its receipt.

Sale, Repurchase or Redemption of Shares

• 11 (1) Where, in accordance with these Regulations, the board of a Canadian carrier determines that some of the Canadian carrier’s voting shares are excess voting shares, the Canadian carrier may sell, as if it were the owner thereof, any of those excess voting shares, if the registered holder has been requested to sell the shares and has not done so and the sale is conducted in accordance with these Regulations.

• (2) The Canadian carrier may sell any excess voting shares

  • (a) on the principal stock exchange;

  • (b) where there is no principal stock exchange, on such other stock exchange or organized market on which the voting shares are listed or traded as the board of the Canadian carrier shall determine; or

  • (c) where the voting shares are not listed or traded on any stock exchange or organized market, in such other manner that is intended to obtain fair market value for the shares as the board of the Canadian carrier shall determine.

• (3) The net proceeds of the sale of excess voting shares sold in accordance with this section shall be the proceeds after the deduction of any commission, tax or other cost of sale.

• (4) For all purposes of a sale of excess voting shares, the Canadian carrier is the agent and lawful attorney of the registered holder and of the beneficial owner of the excess voting shares.

• (5) On completion of the sale of the excess voting shares, any voting rights of those shares that have been suspended shall automatically be restored.

• 12 (1) Where the board of the Canadian carrier determines that it is likely that a sale of excess voting shares would have a material adverse effect on the market value of the shares of the Canadian carrier, the Canadian carrier may elect, by resolution of its board, to repurchase or redeem the excess voting shares, without further notice to the registered holder, in accordance with this section and sections 13 and 14.

• (2) The price paid by the Canadian carrier to repurchase or redeem any excess voting shares shall be

  • (a) the average of the closing price per share of the voting shares for the last 10 trading days during which at least one board lot of voting shares has traded in the period ending on the trading day immediately preceding the date of the redemption or repurchase, on

    • (i) the principal stock exchange, or

    • (ii) where there is no principal stock exchange, such other stock exchange or organized market as the board of the Canadian carrier shall determine on which the required trading has occurred; or

  • (b) calculated on the basis of their fair market value as of the date of the redemption or repurchase, as determined by the board of the Canadian carrier, where the required trading of voting shares referred to in paragraph (a) has not occurred on the principal stock exchange or any other stock exchange or organized market.

• 13 (1) The Canadian carrier may sell, repurchase or redeem excess voting shares in accordance with section 11 or 12, whether or not the Canadian carrier possesses the certificate representing the excess voting shares at the time of the sale, repurchase or redemption.

• (2) Where the Canadian carrier sells excess voting shares in accordance with section 11, without possessing the certificate representing the excess voting shares, the Canadian carrier shall issue to the purchaser of the excess voting shares or its nominee a new certificate representing the excess voting shares sold.

• (3) Where the Canadian carrier sells, repurchases or redeems excess voting shares, in accordance with section 11 or 12, without possessing the certificate representing the excess voting shares and, after the sale, repurchase or redemption, a person establishes that the person is a bona fide purchaser of the excess voting shares that were sold, repurchased or redeemed,

  • (a) the excess voting shares purchased by the bona fide purchaser are deemed to be, effective on the date of the purchase, validly issued and outstanding voting shares to which the voting rights have been restored; and

  • (b) notwithstanding subsection 14(6), the Canadian carrier is entitled to receive the funds deposited pursuant to subsection 14(1) and, in the case of a sale in accordance with section 11, shall add the amount of the deposit to the capital account for the class of voting shares issued.

• 14 (1) Where there is a sale, repurchase or redemption of excess voting shares in accordance with section 11 or 12, the Canadian carrier shall, not later than 10 days after the sale, repurchase or redemption, deposit an amount equal to the amount of the net proceeds of the sale, or the repurchase or redemption proceeds, in a special account in any bank or trust company in Canada, selected by the Canadian carrier.

• (2) Not later than 30 days after a deposit is made pursuant to subsection (1), the Canadian carrier shall send a notice to the registered holder of the excess voting shares sold, repurchased or redeemed, and the notice shall state

  • (a) that a specified number of voting shares has been sold, repurchased or redeemed;

  • (b) the amount of the net proceeds of sale, or the repurchase or redemption proceeds;

  • (c) the name and address of the bank or trust company at which the Canadian carrier has made the deposit of the net proceeds of the sale, or the repurchase or redemption proceeds;

  • (d) that the registered holder may obtain the net proceeds of the sale or the repurchase or redemption proceeds, less the costs of administering the special account, on presentation and surrender of the certificate representing the excess voting shares to the bank or trust company referred to in paragraph (c); and

  • (e) all other relevant particulars of the sale, repurchase or redemption.

• (3) The amount of the deposit referred to in subsection (1), less the reasonable costs of administration of the special account, shall be paid to the registered holder of the excess voting shares sold, repurchased or redeemed on presentation and surrender by the registered holder of the certificate representing the excess voting shares to the bank or trust company.

• (4) Any interest earned on any amount deposited in accordance with subsection (1) shall accrue to the benefit of the Canadian carrier.

• (5) Where the amount of the deposit referred to in subsection (1) is not claimed by the registered holder of the excess voting shares which were sold, repurchased or redeemed or by the Canadian carrier within six years after the sale, repurchase or redemption, the deposit shall escheat to Her Majesty in right of Canada and the rights of a bona fide purchaser under section 13 shall be extinguished by such escheat.

• (6) After a deposit is made pursuant to subsection (1), the registered holder shall not be entitled to any of the remaining rights of a registered holder in respect of the excess voting shares sold, repurchased or redeemed, other than the right to receive the funds so deposited in accordance with subsection (3).

• (7) Where only a part of the voting shares represented by a certificate is sold, repurchased or redeemed in accordance with section 11 or 12, the Canadian carrier shall

  • (a) on presentation and surrender of the certificate and at the expense of the registered holder, issue a new certificate representing the balance of the voting shares not sold, repurchased or redeemed; and

  • (b) amend the security register to indicate

    • (i) the name of the new registered holder of the voting shares that have been sold, repurchased or redeemed, as the case may be, and the number of the voting shares that are now registered in that name, and

    • (ii) the remaining number of the voting shares that are registered in the name of the registered holder of the excess voting shares that were sold, repurchased or redeemed.

Liability

• 15 (1) The Canadian carrier, and any of its directors, officers, employees and agents may rely on its security register or any other of their books or records, or the books or records of its transfer agent or registrar, referred to in these Regulations, their knowledge, information of which they are in receipt that is relevant to the carrier’s eligibility to operate pursuant to section 16 of the Act and any statements made in any affidavit, declaration or evidence filed under these Regulations, and the Canadian carrier and its directors, officers, employees and agents, as the case may be, are not liable in an action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of any such register, books, records, knowledge, information or statements, when determining, for the purposes of these Regulations,

  • (a) whether any voting shares are beneficially owned, or controlled, in such a way as to render the Canadian carrier not eligible to operate pursuant to section 16 of the Act;

  • (b) whether any voting shares are excess voting shares;

  • (c) and for the purposes of subsection 16(2) of the Act, the percentage of the voting shares in the Canadian carrier beneficially owned, and controlled, by Canadians as at July 22, 1987; or

  • (d) any other circumstances relevant to the exercise of the powers of the Canadian carrier and its directors, officers, employees or agents under the Act or these Regulations.

• (2) A corporation, trust, mutual insurance company, partnership, pension fund society, depository or intermediary and any of its directors, officers, employees, trustees or agents, as the case may be, may rely on a security register or any other of their books or records, or the books or records of its transfer agent or registrar, referred to in these Regulations, their knowledge, information of which they are in receipt that relates to their status as Canadians and any statements made in any affidavit, declaration or evidence submitted under these Regulations, and the corporation, trust, mutual insurance company, partnership, pension fund society, depository or intermediary and its directors, officers, employees, trustees or agents, as the case may be, are not liable in an action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of any such register, records, books, knowledge, information or statements, when determining, for the purposes of these Regulations,

  • (a) whether any voting shares are beneficially owned, or controlled, in such a way as to render the corporation, trust, mutual insurance company, partnership or pension fund society not eligible as a qualified corporation, qualified trust, qualified mutual insurance company, qualified partnership or qualified pension fund society, as the case may be; or

  • (b) any other circumstances relevant to the exercise of the powers of the corporation, trust, mutual insurance company, partnership, pension fund society, depository or intermediary and its directors, officers, employees, trustees or agents under the Act or these Regulations.

• (3) The Commission and any of its members, officers, employees or agents may rely on a security register or any other relevant book or record referred to in these Regulations, their knowledge, information of which they are in receipt that is relevant to section 16 of the Act and any statements made in any affidavit, declaration or evidence filed under these Regulations, and the Commission and its members, officers, employees or agents are not liable in an action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of the register, books, records, knowledge, information or statements when determining, for the purposes of these Regulations,

  • (a) whether any voting shares are beneficially owned, or controlled, in such a way as to render a Canadian carrier not eligible to operate pursuant to section 16 of the Act;

  • (b) and for the purposes of subsection 16(2) of the Act, the percentage of the voting shares in a Canadian carrier beneficially owned, and controlled, by Canadians as at July 22, 1987; or

  • (c) any other circumstance relevant to the exercise of the powers of the Commission and its members, officers, employees or agents under the Act or these Regulations.

Role and Powers of the Commission

• 16 (1) Where the Commission has information that causes it to believe that a Canadian carrier may not be eligible to operate pursuant to section 16 of the Act, the Commission may

  • (a) request the carrier to provide, within a specified time, information that will assist the Commission in determining whether the carrier is so eligible to operate; and

  • (b) where the carrier fails to provide the information within the specified time in accordance with paragraph (a), exercise the powers of a director of the Canadian carrier under section 7 to obtain the information by way of affidavit or declaration.

• (2) Where a Canadian carrier does not exercise any of its powers pursuant to these Regulations in order to remain eligible to operate pursuant to section 16 of the Act, the Commission may, subject to subsection (3), exercise the powers of the carrier with the same authority and effect as if the powers had been exercised by the carrier.

• (3) The Commission may exercise the relevant powers referred to in subsection (2), where

  • (a) the Commission has given the Canadian carrier notice of the Commission’s intention to exercise the carrier’s powers, and the reasons therefor;

  • (b) the Commission has provided the Canadian carrier with at least 30 days after the Canadian carrier receives the notice to exercise the powers referred to in subsection (2);

  • (c) the Canadian carrier has not exercised the powers within the period specified by the Commission in the notice; and

  • (d) the Commission has reason to believe that the Canadian carrier continues to be not eligible to operate pursuant to section 16 of the Act.

• (4) Not later than 90 days after its annual general meeting or the issuance of its annual financial statement, whichever is the earlier, every Canadian carrier shall file with the Commission a report that includes

  • (a) an outline of the measures, if any, that it has taken since the annual general meeting or annual financial statement immediately preceding the meeting or financial statement referred to in this subsection, in order to ensure or confirm compliance with these Regulations;

  • (b) the status, as of the date of the report, of the carrier’s Canadian ownership and control, including the percentages of voting shares beneficially owned, and controlled, by Canadians;

  • (c) the identity of directors and whether each is a Canadian;

  • (d) an affidavit or a declaration affirming whether the Canadian carrier is eligible to operate pursuant to section 16 of the Act; and

  • (e) any other information that the Commission requests in order to determine whether the Canadian carrier is eligible to operate pursuant to section 16 of the Act.

Grandfathered Telecommunications Common Carriers

• 17 (1) For the purposes of this section, a corporation is a subsidiary of another corporation or person if it is controlled by that corporation or person.

• (2) For the purposes of this section and subsection 16(2) of the Act, successor means

  • (a) a corporation that, after July 22, 1987, acquires direct control of a person that was acting as a telecommunications common carrier in Canada on July 22, 1987, whether as a result of an amalgamation, transfer or exchange of property, assets or securities, or other form of arrangement;

  • (b) a corporation that is a subsidiary of the person referred to in paragraph (a); or

  • (c) a corporation that is a subsidiary of the corporation referred to in paragraph (a), but does not include any person referred to in that paragraph that was acting as a telecommunications common carrier in Canada on July 22, 1987.

• (3) For the purposes of subsections (4) to (12),

  carrier

  carrier means a person that was acting as a telecommunications common carrier in Canada on July 22, 1987 (entreprise);

  acquiring corporation

  acquiring corporation means a successor that is a corporation referred to in paragraph (2)(a) and that acquires direct control of a carrier. (acquéreur)

• (4) For the purposes of paragraph 16(2)(c) of the Act,

  • (a) where the carrier is a corporation, the carrier shall, subject to paragraph (d), satisfy the following criteria respecting continuous ownership, and control, by Canadians since July 22, 1987, namely, that at no time since July 22, 1987, and while it was operating as a telecommunications common carrier, has

    • (i) the percentage of the members of its board represented by the aggregate of the members of its board who are individual Canadians and the members of its board who, on July 22, 1987 were individual Canadians but are no longer individual Canadians and continue to be members of the board of the carrier been lower than the lesser of

      • (A) the percentage of its board who were individual Canadians as at July 22, 1987, and

      • (B) eighty per cent, and

    • (ii) the percentage of its voting shares that are beneficially owned, and controlled, by Canadians decreased, for a period of more than one year, by more than five per cent from the percentage of its voting shares beneficially owned, and controlled, by Canadians as at July 22, 1987;

  • (b) where the carrier is not a corporation, the carrier shall, subject to paragraph (d), satisfy the following criterion respecting continuous ownership and control by Canadians since July 22, 1987, namely, that at no time since July 22, 1987, and while it was operating as a telecommunications common carrier, has the percentage of its beneficial ownership by Canadians decreased, for a period of more than one year, by more than five per cent from the percentage of its beneficial ownership by Canadians as at July 22, 1987;

  • (c) a successor that is a corporation referred to in paragraph (2)(b) and that operates as a telecommunications common carrier shall satisfy the following criteria respecting continuous ownership and control by Canadians since July 22, 1987, namely,

    • (i) the carrier of which it is a subsidiary continues to satisfy the criteria set out in paragraph (a) or (b), as the case may be,

    • (ii) not less than eighty per cent of the members of its board of directors are individual Canadians,

    • (iii) where any of its voting shares are not controlled by the carrier, not less than eighty per cent of those shares are beneficially owned, and controlled, by Canadians, and

    • (iv) the corporation continues to be a subsidiary of the carrier;

  • (d) where control of a carrier has been acquired by an acquiring corporation, the carrier shall satisfy the following criteria respecting continuous ownership and control by Canadians since July 22, 1987, namely, from and after the time of the acquisition,

    • (i) the carrier continues to be controlled by the acquiring corporation that first acquired it and the acquiring corporation satisfies the criteria set out in paragraph (e),

    • (ii) the percentage of the members of its board represented by the aggregate of the members of its board who are Canadians and the members of its board who, on July 22, 1987 were individual Canadians but are no longer individual Canadians and continue to be members of the board of the carrier has not been lower than the lesser of

      • (A) the percentage of its board who were individual Canadians as at July 22, 1987, and

      • (B) eighty per cent, and

    • (iii) where any of its voting shares are not controlled by the acquiring corporation, not less than eighty per cent of those shares are beneficially owned, and controlled, by Canadians;

  • (e) an acquiring corporation shall satisfy the following criteria respecting continuous ownership and control by Canadians since July 22, 1987, namely, that at no time since acquiring control of the carrier has

    • (i) the percentage of the members of the acquiring corporation’s board of directors represented by the aggregate of the members of its board who are individual Canadians and the members of its board who, on July 22, 1987, were individual Canadians and members of the board of the carrier, but are no longer individual Canadians and continue to be members of the board of the carrier been lower than the lesser of

      • (A) the percentage of the members of the board of the carrier who were individual Canadians as at July 22, 1987, and

      • (B) eighty per cent, and

    • (ii) the percentage of the acquiring corporation’s voting shares that are beneficially owned, and controlled, by Canadians decreased, for a period of more than one year, by more than five per cent from the percentage of the voting shares of the carrier that were beneficially owned, and controlled, by Canadians as at July 22, 1987; and

  • (f) a successor that is a corporation referred to in paragraph (2)(c) and that operates as a telecommunications common carrier shall satisfy the following criteria respecting continuous ownership and control by Canadians since July 22, 1987, namely,

    • (i) the acquiring corporation of which it is a subsidiary continues to satisfy the criteria set out in paragraph (e),

    • (ii) not less than eighty per cent of the members of its board of directors are individual Canadians, and

    • (iii) where any of its voting shares are not controlled by the acquiring corporation, not less than eighty per cent of those shares are beneficially owned, and controlled, by Canadians.

• (5) Where the percentage of the voting shares of a carrier that are beneficially owned, and controlled, by Canadians decreases from the percentage of those shares that were beneficially owned, and controlled, by Canadians as at July 22, 1987, the carrier may exercise the powers set out in subsection 8(1) and sections 9 to 14, in relation to those voting shares.

• (6) Where the percentage of the voting shares of an acquiring corporation that are beneficially owned, and controlled, by Canadians decreases from the percentage of the voting shares of the carrier that were beneficially owned, and controlled, by Canadians as at July 22, 1987, the acquiring corporation may exercise the powers set out in sections 20 to 26, in relation to its voting shares.

• (7) For the purpose of determining whether voting shares of the carrier were beneficially owned by persons who were Canadians as at July 22, 1987, and the number of such shares, the directors may include in their determination, without requiring further evidence that the persons are Canadian,

  • (a) subject to subsection (8), voting shares registered in the name of a shareholder who is an individual whose address, as shown in the security register or books and records compiled as of the date closest to July 22, 1987 within a six-month period, is in Canada;

  • (b) subject to subsection (8), voting shares registered in the name of a shareholder who is not an individual, whose holdings were not greater than ten per cent of the voting shares of the carrier issued and outstanding as at that date and whose address as shown in the security register or books and records compiled as of the date closest to July 22, 1987 within a six-month period, is in Canada;

  • (c) voting shares held by a depository that maintained its head office and principal place of business in Canada, where the address of the person on whose behalf the depository held the shares is in Canada, as shown on the books and records of the depository compiled as of a date closest to July 22, 1987 within a six-month period; and

  • (d) voting shares held by a shareholder who establishes by affidavit or declaration filed pursuant to subsection (8) or (9) that the shareholder is a Canadian.

• (8) Where the directors of a corporation have information that causes them to believe that a shareholder referred to in paragraph (7)(a) or (b) was not the beneficial owner of the shares or that a person who was the beneficial owner of the shares was not a Canadian or would be considered to be a non-Canadian pursuant to these Regulations, the directors shall not include the voting shares of the shareholder or person in the determination referred to in subsection (7) unless the directors receive an affidavit or a declaration requested pursuant to section 7 that establishes

  • (a) where the shareholder was not the beneficial owner, the identity of the beneficial owner at the relevant time and that the beneficial owner at the relevant time was a Canadian; or

  • (b) where the shareholder was the beneficial owner at the relevant time, that the shareholder was a Canadian at the relevant time.

• (9) Where a shareholder, other than a depository that maintains its head office and principal place of business in Canada, owned or controlled shares consisting in the aggregate, on July 22, 1987 or the date closest to July 22, 1987 within a six-month period, of more than ten per cent of the issued and outstanding voting shares on that date, the shareholder shall, within six months after the coming into force of these Regulations, file with the Commission an affidavit or a declaration setting out the identity of the beneficial owner of the shares as at that date, and indicating whether the beneficial owner was a Canadian as at that date.

• (10) The shareholder referred to in subsection (9) shall send a copy of an affidavit or declaration to the carrier at the same time as the affidavit or declaration is sent to the Commission.

• (11) Where a shareholder fails to file an affidavit or declaration pursuant to subsection (8), the shares of the shareholder shall be considered to have been beneficially owned, and controlled, by a non-Canadian as at the relevant date.

• (12) Where the directors of a carrier or acquiring corporation determine the number of voting shares of the carrier pursuant to subsection (7), no further determination of the voting shares of that carrier or of the acquiring corporation shall be required for any period before the coming into force of these Regulations.

PART IICarrier Holding Corporations

Interpretation

18 In this Part,

acquiring corporation

acquiring corporation means a successor that is a corporation referred to in paragraph 17(2)(a) and that acquires direct control of a carrier; (acquéreur)

carrier

carrier means a person that was acting as a telecommunications common carrier in Canada on July 22, 1987; (entreprise)

registered holder

registered holder means the person or entity in whose name shares of a carrier holding corporation are registered in the corporation’s security register or on the books or records of its transfer agent or registrar. (détenteur inscrit)

Affidavits or Declarations

• 19 (1) A director of a carrier holding corporation who requires information for the purposes of determining whether the carrier holding corporation is a qualified corporation, or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii), may, with the authorisation of the board, make a written request in accordance with subsection (2) to

  • (a) a shareholder of the carrier holding corporation for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (v), the identity of the beneficial owner of all of the voting shares in that corporation of which the shareholder is the registered holder,

    • (ii) whether the beneficial owner is a Canadian,

    • (iii) the date of registration or acquisition of the voting shares,

    • (iv) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criteron set out in subparagraph 17(4)(e)(ii), and

    • (v) where the shareholder is unable, for reasons of confidentiality, to disclose the identity of the beneficial owner referred to in subparagraph (i), that the shareholder is unable to so disclose the identity but has determined that the beneficial owner is or is not a Canadian;

  • (b) a shareholder of a corporation that is, directly or indirectly, a shareholder of the carrier holding corporation, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (v), the identity of the beneficial owner of all of the voting shares in the corporation of which the shareholder is the holder of record,

    • (ii) whether the beneficial owner is a Canadian,

    • (iii) the date of registration or acquisition of the voting shares,

    • (iv) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii), and

    • (v) where the shareholder is unable, for reasons of confidentiality, to disclose the identity of the beneficial owner referred to in subparagraph (i), that the shareholder is unable to so disclose the identity but has determined that the beneficial owner is or is not a Canadian;

  • (c) a trustee of a trust that is, directly or indirectly, a shareholder of the carrier holding corporation, for an affidavit or declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity of each trustee,

    • (ii) the beneficial interest of each beneficiary in the trust,

    • (iii) whether each beneficiary and trustee is a Canadian,

    • (iv) the date of registration or acquisition of the voting shares held by the trust,

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii), and

    • (vi) where the trustee is unable, for reasons of confidentiality, to disclose the identity of a trustee referred to in subparagraph (i), that the trustee is unable to so disclose the identity but has determined that the trustee is or is not a Canadian;

  • (d) a mutual insurance company that is, directly or indirectly, a shareholder of the carrier holding corporation, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) the location of its head office and principal place of business,

    • (ii) the identity of each member of its board and of each member of each committee of directors,

    • (iii) which members of the board are Canadians,

    • (iv) the date of registration or acquisition of the voting shares held by the mutual insurance company, and

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii);

  • (e) a partnership, that is, directly or indirectly, a shareholder of the carrier holding corporation, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity of each partner,

    • (ii) which partners are Canadians,

    • (iii) the beneficial interest of each partner,

    • (iv) the date of registration or acquisition of the voting shares held by the partnership,

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that satisfies the criterion set out in subparagraph 17(4)(e)(ii), and

    • (vi) where the partnership is unable, for reasons of confidentiality, to disclose the identity of a partner referred to in subparagraph (i), that the partnership is unable to so disclose the identity but has determined that the partner is or is not a Canadian;

  • (f) a pension fund society that is, directly or indirectly, a shareholder of the carrier holding corporation, for an affidavit or a declaration that sets out any or all of the following information, namely,

    • (i) the location of its head office and principal place of business,

    • (ii) the identity of each member of its board and of each member of each committee of directors,

    • (iii) which members of the board are Canadians;

    • (iv) the date of the registration or acquisition of the voting shares held by the pension fund society, and

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that satisfies the criterion set out in subparagraph 17(4)(e)(ii);

  • (g) a depository, for an affidavit or declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity and latest address on the books or records of the depository of each person or entity on whose behalf the depository holds voting shares in the carrier holding corporation,

    • (ii) the number of voting shares that the depository holds on behalf of each person or entity,

    • (iii) whether each person or entity is a Canadian,

    • (iv) the date of registration of the transfer of the voting shares of the carrier holding corporation on the books or records of the depository,

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii), and

    • (vi) where the depository is unable, for reasons of confidentiality, to disclose the identity of a person or entity referred to in subparagraph (i), that the depository is unable to so disclose the identity, but has determined that the person or entity is or is not a Canadian; and

  • (h) an intermediary, for an affidavit or declaration that sets out any or all of the following information, namely,

    • (i) subject to subparagraph (vi), the identity and latest address on the records of the intermediary of each person or entity on whose behalf it holds voting shares in the carrier holding corporation,

    • (ii) the number of the voting shares that the intermediary holds on behalf of each person or entity,

    • (iii) whether each person or entity is a Canadian,

    • (iv) the date of registration of the transfer of the voting shares of the carrier holding corporation on the books or records of the intermediary,

    • (v) any other information that the director requests in order to determine whether the carrier holding corporation is a qualified corporation or an acquiring corporation that meets the criterion set out in subparagraph 17(4)(e)(ii), and

    • (vi) where the intermediary is unable, for reasons of confidentiality, to disclose the identity of a person or entity referred to in subparagraph (i), that the intermediary is unable to so disclose the identity but has determined that the person or entity is or is not a Canadian.

• (2) A request for an affidavit or a declaration made pursuant to subsection (1) shall

  • (a) be given by mail or personal service; and

  • (b) specify a date that is not earlier than 30 days and not later than 60 days after the giving of the request by which the shareholder, trustee, mutual insurance company, partnership, pension fund society, depository or intermediary shall comply with the request.

• (3) A person or entity to whom a request for an affidavit or declaration is made pursuant to subsection (1) shall file the affidavit or declaration no later than the date specified pursuant to paragraph (2)(b).

• (4) An affidavit or a declaration filed pursuant to subsection (3) shall be valid for a period of 12 months from the date of filing with the carrier holding corporation.

• (5) Where a director of a carrier holding corporation requests an affidavit or a declaration from a person or entity under this section and the person or entity does not file the affidavit or declaration by the date set out in the request, the voting shares of the person or entity in the carrier holding corporation or in the corporation that is, directly or indirectly, a shareholder of the carrier holding corporation shall, effective the day following the date set out in the request until the affidavit or declaration is filed, be considered to be beneficially owned by a non-Canadian.

Refusal to Subscribe, Issue, Transfer or Acquire Shares

20 A carrier holding corporation may refuse to accept any subscription for, issue, register the transfer of, purchase or otherwise acquire, any of its voting shares unless a declaration is submitted to the carrier holding corporation and the carrier holding corporation determines that the effect of the information appearing on the declaration, together with any other information in any books or records of the carrier holding corporation, or the Canadian carrier or either of their transfer agents or registrars is that the subscription, issue, transfer, purchase or acquisition would not result in

• (a) the percentage of the total voting shares of the carrier holding corporation that are beneficially owned and controlled by non-Canadians exceeding 33 1/3 per cent, in the case of a qualified corporation; or

• (b) the percentage of the total voting shares in the acquiring corporation that are beneficially owned and controlled by non-Canadians exceeding the percentage of voting shares in the carrier that were beneficially owned and controlled by non-Canadians as at July 22, 1987.

Suspension of Voting Rights

• 21 (1) The carrier holding corporation may, in accordance with section 22, suspend all rights of a shareholder to vote that would otherwise be attached to any voting shares beneficially owned, or controlled, or considered by these Regulations to be beneficially owned, or controlled, by non-Canadians, in the order referred to in subsection (2), so that the proportion of the voting shares beneficially owned, or controlled, or considered by these Regulations to be beneficially owned, or controlled, by non-Canadians and with respect to which voting rights are not suspended, is reduced to

  • (a) not more than 33 1/3 per cent of the total issued and outstanding voting shares of the carrier holding corporation, where the corporation wishes to regain its status as a qualified corporation; or

  • (b) a percentage that is equal to, or within five per cent of, the percentage of the voting shares of the carrier that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, where the corporation is an acquiring corporation.

• (2) The voting rights referred to in subsection (1) shall be suspended in an order inverse to the date of registration, which shall be considered to be

  • (a) the date of the registration of the voting shares on the security register of the carrier holding corporation or in the books or records of its transfer agent or registrar; or

  • (b) where the shares are held by an intermediary or a depository, the date of registration of the transfer of the voting shares on its books or records.

Notice of Holdco Excess Voting Shares

• 22 (1) Where the board of a carrier holding corporation has information concerning the beneficial ownership or control of the carrier holding corporation that causes the board to believe that some of the carrier holding corporation’s voting shares are holdco excess voting shares and the carrier holding corporation intends to take further action pursuant to these Regulations, the carrier holding corporation shall immediately send a notice to the registered holders of those voting shares that are chosen in the order referred to in subsection 21(2).

• (2) A carrier holding corporation shall, in the notice referred to in subsection (1),

  • (a) specify the reasons why the board of the carrier holding corporation believes that the voting shares referred to in that subsection are holdco excess voting shares;

  • (b) where the carrier holding corporation wishes the registered holder to sell or otherwise dispose of the holdco excess voting shares identified in the notice, specify a date, that is not earlier than 60 days and not later than 180 days after the date of the notice, by which the registered holder shall

    • (i) sell or otherwise dispose of the holdco excess voting shares in favour of Canadians and provide written evidence of the sale or other disposition, or

    • (ii) provide written evidence that no such sale or other disposition of holdco excess voting shares is required; and

  • (c) where the board wishes to suspend the voting rights with respect to the holdco excess voting shares identified in the notice, specify that, unless the registered holder complies with the requirement to sell or otherwise dispose of the shares or provide written evidence pursuant to subparagraph (b)(ii), the voting rights shall be suspended from the date on which the sale or other disposition should have taken place or the evidence should have been provided and that a sale of those voting shares by the carrier holding corporation in accordance with section 23 or a repurchase or redemption by the carrier holding corporation in accordance with section 24 may result, in each case without further notice to the registered holder.

• (3) Where, after the sending of a notice referred to in subsection (1), the registered holder provides the carrier holding corporation with written evidence that no sale or other disposition of excess voting shares is required, the board of the carrier holding corporation shall, within 10 days after the receipt of the evidence, assess the evidence and determine whether the registered holder’s voting shares are holdco excess voting shares.

• (4) Where the board of the carrier holding corporation determines that the shares are not holdco excess voting shares and that no sale or other disposition of voting shares is required, the carrier holding corporation shall so advise the registered holder immediately.

• (5) Where the board of the carrier holding corporation determines that the shares are holdco excess voting shares and that a sale or other disposition of holdco excess voting shares is required in order for the carrier holding corporation to be a qualified corporation, or, where the carrier holding corporation is an acquiring corporation, in order to reduce the total number of voting shares in the carrier holding corporation that are holdco excess voting shares to zero or to any percentage such that the percentage of the voting shares that is beneficially owned, and controlled by non-Canadians is within five per cent of the percentage of the voting shares of the carrier that were beneficially owned, and controlled, by non-Canadians as at July 22, 1987, the carrier holding corporation shall send a notification to the registered holder of the holdco excess voting shares,

  • (a) informing the registered holder of the board’s determination;

  • (b) confirming that the shares are to be sold by the date specified in the notification; and

  • (c) specifying therein a further date, that is not later than 60 days after the date of the notification, by which the registered holder shall provide written evidence to the carrier holding corporation of the sale or other disposition, failing which the rights of the shareholder to vote with respect to the excess voting shares will be suspended from that further date.

Sale, Repurchase or Redemption of Shares

• 23 (1) For the purposes of ensuring that a carrier holding corporation continues to be a qualified corporation, or, where the carrier holding corporation is an acquiring corporation, that the percentage of its voting shares that are beneficially owned, and controlled, by Canadians is within five per cent of the percentage of the voting shares in the carrier that were beneficially owned, and controlled, by Canadians as at July 22, 1987, the carrier holding corporation may sell, as if it were the owner thereof, any voting shares in the carrier holding corporation that the board of the carrier holding corporation determines to be holdco excess voting shares in accordance with these Regulations, if the registered holder has been requested to sell the shares and has not done so and the sale is conducted in accordance with these Regulations.

• (2) The carrier holding corporation may sell any holdco excess voting shares

  • (a) on the holdco principal stock exchange;

  • (b) where there is no holdco principal stock exchange, on such other stock exchange or organized market on which the voting shares are listed or traded as the board of the carrier holding corporation shall determine; or

  • (c) where the voting shares of the carrier holding corporation are not listed or traded on any stock exchange or organized market, in such other manner that is intended to obtain fair market value for the shares as the board of the carrier holding corporation shall determine.

• (3) The net proceeds of sale of holdco excess voting shares sold in accordance with this section shall be the proceeds after the deduction of any commission, tax or other cost of sale.

• (4) For all purposes of a sale of holdco excess voting shares, the carrier holding corporation is the agent and lawful attorney of the registered holder and of the beneficial owner of the holdco excess voting shares.

• (5) On completion of the sale of the holdco excess voting shares, the voting rights of those shares that have been suspended shall automatically be restored.

• 24 (1) Where the board of the carrier holding corporation determines that it is likely that a sale of holdco excess voting shares would have a material adverse effect on the market value of the shares of the carrier holding corporation, the carrier holding corporation may elect, by resolution of its board, to repurchase or redeem the holdco excess voting shares, without further notice to the registered owner, in accordance with this section and sections 25 and 26.

• (2) The price paid by the carrier holding corporation to repurchase or redeem any holdco excess voting shares shall be

  • (a) the average of the closing price per share of the voting shares for the last 10 trading days during which at least one board lot of voting shares has traded in the period ending on the trading day immediately preceding the date of the redemption or repurchase, on

    • (i) the holdco principal stock exchange, or

    • (ii) where there is no holdco principal stock exchange, such other stock exchange or organized market as the board of the carrier holding corporation shall determine on which the required trading has occurred; or

  • (b) calculated on the basis of their fair market value as of the date of the redemption or repurchase, as determined by the board of the carrier holding corporation, where the required trading of voting shares referred to in paragraph (a) has not occurred on the holdco principal stock exchange or any other stock exchange or organized market.

• 25 (1) The carrier holding corporation may sell, repurchase or redeem holdco excess voting shares in accordance with section 23 or 24 whether or not the carrier holding corporation possesses the certificate representing the holdco excess voting shares at the time of the sale, repurchase or redemption.

• (2) Where the carrier holding corporation sells holdco excess voting shares in accordance with section 23, without possessing the certificate representing the excess voting shares, the carrier holding corporation shall issue to the purchaser of the holdco excess voting shares or its nominee a new certificate representing the holdco excess voting shares sold.

• (3) Where the carrier holding corporation sells, repurchases or redeems holdco excess voting shares, in accordance with section 23 or 24 without possessing the certificate representing the holdco excess voting shares and, after the sale, repurchase or redemption, a person establishes that the person is a bona fide purchaser of the holdco excess voting shares that were sold, repurchased or redeemed,

  • (a) the holdco excess voting shares purchased by the bona fide purchaser are deemed to be, effective on the date of the purchase, validly issued and outstanding voting shares to which voting rights that have been suspended have been restored; and

  • (b) notwithstanding subsection 26(6), the carrier holding corporation is entitled to receive the funds deposited pursuant to subsection 26(1) and, in the case of a sale in accordance with subsection (1), shall add the amount of the deposit to the capital account for the class of voting shares issued.

• 26 (1) Where there is a sale, repurchase or redemption of holdco excess voting shares in accordance with section 23 or 24, the carrier holding corporation shall, not later than 10 days after the sale, repurchase or redemption, deposit an amount equal to the amount of the net proceeds of the sale or the repurchase or redemption proceeds in a special account in any bank or trust company in Canada selected by the carrier holding corporation.

• (2) Not later than 30 days after a deposit is made pursuant to subsection (1), the carrier holding corporation shall send a notice to the registered holder of the holdco excess voting shares sold, repurchased or redeemed, and the notice shall state

  • (a) that a specified number of voting shares has been sold, repurchased or redeemed;

  • (b) the amount of the net proceeds of the sale or the repurchase or redemption proceeds;

  • (c) the name and address of the bank or trust company at which the carrier holding corporation has made the deposit of the net proceeds of the sale, or the repurchase or redemption proceeds;

  • (d) that the registered owner may obtain the net proceeds of the sale or the repurchase or redemption proceeds, less the costs of administering the special account, on presentation and surrender of the certificate representing the excess voting shares to the bank or trust company referred to in paragraph (c); and

  • (e) all other relevant particulars of the sale, repurchase or redemption.

• (3) The amount of the deposit referred to in subsection (1), less the costs of administration of the special account, shall be paid to the registered holder of the holdco excess voting shares sold, repurchased or redeemed on presentation and surrender by the registered holder of the certificate representing the excess voting shares to the bank or trust company.

• (4) Any interest earned on any amount deposited in accordance with subsection (1) shall accrue to the benefit of the carrier holding corporation.

• (5) Where the amount of the deposit referred to in subsection (1) is not claimed by the registered holder of the holdco excess voting shares that were sold, repurchased or redeemed or by the carrier holding corporation within six years after the sale, repurchase or redemption, the deposit shall escheat to Her Majesty in right of Canada and the rights of a bona fide purchaser under section 25 shall be extinguished by such escheat.

• (6) After a deposit is made pursuant to subsection (1), the registered holder shall not be entitled to any of the remaining rights of a registered holder in respect of the holdco excess voting shares sold, repurchased or redeemed, other than the right to receive the funds so deposited in accordance with subsection (3).

• (7) Where only a part of the voting shares represented by a certificate is sold, repurchased or redeemed in accordance with section 23 or 24, the carrier holding corporation shall

  • (a) on presentation and surrender of the certificate and at the expense of the registered holder, issue a new certificate representing the balance of the voting shares not sold, repurchased or redeemed; and

  • (b) amend the security register to indicate

    • (i) the name of the new registered holder of the voting shares that have been sold, repurchased or redeemed, and the number of the voting shares that are now registered in that name, and

    • (ii) the remaining number of the voting shares that are registered in the name of the registered holder of the holdco excess voting shares that were sold, repurchased or redeemed.

Liability

• 27 (1) The carrier holding corporation, and any of its directors, officers, employees and agents may rely on its security register or any other of their books or records, or the books or records of its transfer agent or registrar, referred to in these Regulations, their knowledge, information of which they are in receipt that relates to its status as a qualified corporation or, where the carrier holding corporation is an acquiring corporation, that relates to the criterion set out in subparagraph 17(4)(e)(ii) and any statements made in any affidavit, declaration or evidence filed under these Regulations, and the carrier holding corporation and its directors, officers, employees or agents are not liable in an action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of any such register, records, books, knowledge, information or statements, when determining, for the purposes of these Regulations,

  • (a) whether any voting shares are beneficially owned, or controlled, in such a way as to prevent the carrier holding corporation from being a qualified corporation, or where the carrier holding corporation is an acquiring corporation, from satisfying the criterion set out in subparagraph 17(4)(e)(ii);

  • (b) and for the purposes of subsection 16(2) of the Act, the percentage of the voting shares in the carrier that were beneficially owned, and controlled, by Canadians as at July 22, 1987, where the carrier holding corporation is an acquiring corporation;

  • (c) whether any voting shares are holdco excess voting shares; or

  • (d) any other circumstances relevant to the exercise of the powers of the carrier holding corporation and its directors, officers, employees or agents under these Regulations.

• (2) A corporation, trust, mutual insurance company, partnership, pension fund society, depository or intermediary and any of its directors, officers, employees, trustees or agents, as the case may be, may rely on a security register or any other of their other books or records referred to in these Regulations, or the books or records of its transfer agent or registrar, their knowledge, information of which they are in receipt that relates to their status as Canadians and any statements made in any affidavit, declaration or evidence submitted under these Regulations, and the corporation, trust, mutual insurance company, partnership, depository or intermediary and its directors, officers, employees, trustees or agents, as the case may be, are not liable in an action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of any such register, records, books, knowledge, information or statements, when determining, for the purposes of these Regulations,

  • (a) whether any voting shares are beneficially owned, or controlled, in such a way as to prevent

    • (i) the corporation from being a qualified corporation or an acquiring corporation from satisfying the criterion set out in subparagraph 17(4)(e)(ii),

    • (ii) the trust from being a qualified trust,

    • (iii) the mutual insurance company from being a qualified mutual insurance company,

    • (iv) the partnership from being a qualified partnership, or

    • (v) the pension fund society from being a qualified pension society; or

  • (b) any other circumstances relevant to the exercise of the powers of the duties of the corporation, trust, mutual insurance company, partnership, pension fund society, depository or intermediary and its directors, officers, employees, trustees or agents under these Regulations.