Port Authorities Management Regulations (SOR/99-101)

Interpretation

1 The definitions in this section apply in these Regulations.

Act

Act means the Canada Marine Act. (Loi)

auditor

auditor includes a partnership of auditors. (vérificateur)

beneficial ownership

beneficial ownership includes ownership of a share or borrowing through a trustee, legal representative, agent or other intermediary. (véritable propriétaire)

body corporate

body corporate includes a company or other body corporate wherever or however incorporated. (personne morale)

controlled

controlled, in respect of a body corporate, has the meaning assigned in subsection 2(3) of the Canada Business Corporations Act. (contrôle)

court

court means

• (a) the Ontario Court (General Division);

• (b) the Superior Court of Quebec;

• (c) the trial division or branch of the Supreme Court of Prince Edward Island and Newfoundland;

• (d) the Court of Queen’s Bench for New Brunswick, Manitoba, Saskatchewan and Alberta;

• (e) the Supreme Court of Nova Scotia and British Columbia;

• (f) the Supreme Court of the Yukon Territory and the Northwest Territories; and

• (g) the Federal Court. (tribunal)

long-term

long-term, in respect of an investment, means that the term to maturity is one year or more but less than 10.5 years. (à long terme)

officer

officer, in respect of a port authority, means a person appointed by the board of directors of the port authority under subsection 21(1) of the Act and the chairperson of the board of directors elected under section 17 of the Act. (dirigeant)

short-term

short-term, in respect of an investment, means that the term to maturity is less than one year. (à court terme)

Non-Application of Certain Acts

2 The provisions of the Canada Business Corporations Act, the Canada Corporations Act and the Winding-up and Restructuring Act do not apply to a port authority unless in these Regulations they are expressly stated to apply.

Binding on Her Majesty

3 These Regulations are binding on Her Majesty in right of Canada or a province.

PART 1General Administrative Matters

Corporate Name

4 A port authority shall set out its corporate name as set out in its letters patent, in legible characters, in all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of it.

• 5 (1) Subject to subsection (2) and except in the circumstances referred to in section 4, a port authority may carry on business under or identify itself by a name other than its corporate name if that other name does not contain, except in a figurative or descriptive sense, any of the following words or expressions or the corresponding abbreviations:

  • (a) in its English version, “Limited”, “Incorporated” or “Corporation”; and

  • (b) in its French version, “Limitée”, “Incorporée” or “Société par actions de régime fédéral”.

• (2) A port authority shall not carry on business under or identify itself by a name that is

  • (a) prohibited or deceptively misdescriptive within the meaning of paragraph 12(1)(a) of the Canada Business Corporations Act; or

  • (b) reserved for another corporation under section 11 of the Canada Business Corporations Act.

• (3) Subsection (1) does not apply to the extent that the use of some other name is authorized under the letters patent.

Registered Office

6 If the street address of the registered office of a port authority changes, the port authority shall submit to the Minister a request for supplementary letters patent that set out the new street address.

Corporate Records

• 7 (1) A port authority shall maintain, at its registered office, records that contain

  • (a) its letters patent, its by-laws and all amendments to the by-laws;

  • (b) a copy of the annual financial statements, for a period of six years after the end of the fiscal year to which they relate;

  • (c) a copy of every document received by it in the last six years notifying it of the appointment or cessation of office of a director;

  • (d) a copy of the constating instruments of each of its wholly-owned subsidiaries, as amended from time to time;

  • (e) a copy of the financial statements of each of its wholly-owned subsidiaries and of each body corporate the accounts of which are consolidated in the latest financial statements of the port authority; and

  • (f) a copy of every document that a wholly-owned subsidiary of the port authority is required to make available to the public under the laws of the jurisdiction in which the subsidiary is incorporated.

• (2) A port authority shall prepare and maintain

  • (a) at its registered office, a record of what transpired at the last six annual meetings held under the Act; and

  • (b) at its registered office or at such other place in Canada as the board of directors thinks fit, a record of the minutes of meetings and resolutions of the board of directors and committees of directors.

• (3) In the case of a harbour commission, or a local port corporation within the meaning assigned in section 2 of the Canada Ports Corporation Act, that is continued, deemed to be incorporated or incorporated as a port authority under the Act, the requirement to maintain records that contain minutes of meetings and resolutions of the board of directors and committees of directors includes maintaining similar records that the harbour commission or local port corporation had in its possession before it was continued, deemed to be incorporated or incorporated.

• 8 (1) Subject to any other Act of Parliament, or any applicable Act of the legislature of a province, that provides for a longer retention period, a port authority shall maintain accounting records at its registered office or at such other place in Canada as the board of directors thinks fit for a period of six years after the end of the fiscal year to which they relate.

• (2) In the case of a harbour commission, or a local port corporation or non-corporate port within the meaning assigned in section 2 of the Canada Ports Corporation Act, that is continued, deemed to be incorporated or incorporated as a port authority under the Act, the requirement to maintain accounting records includes maintaining similar records that the harbour commission, the local port corporation or the Canada Ports Corporation had in its possession before it was continued, deemed to be incorporated or incorporated.

Records — Form and Precautions

• 9 (1) Any record required by the Act or these Regulations shall be prepared and maintained in a form that allows for the reproduction of any required information in intelligible written form within a reasonable time, including

  • (a) a bound or loose-leaf form;

  • (b) a photographic form;

  • (c) a system of mechanical or electronic data processing; or

  • (d) any other information storage device.

• (2) Every port authority and every wholly-owned subsidiary of a port authority shall ensure that reasonable precautions are taken in respect of records required by the Act or these Regulations to

  • (a) prevent their loss or destruction;

  • (b) prevent the falsification of entries in them; and

  • (c) facilitate the detection and correction of inaccuracies in them.

Access to Corporate Records

• 10 (1) Subject to subsection (2), any person may examine records referred to in subsection 7(1) and paragraph 7(2)(a) during the normal business hours of the port authority.

• (2) Subject to the Privacy Act, any person may examine records referred to in paragraph 7(1)(c) during the normal business hours of the port authority.

• (3) To the extent that examination of records is authorized under subsection (1) or (2), extracts from the records may be taken

  • (a) free of charge by the Minister and creditors of the port authority or the agents or legal representatives of the creditors; and

  • (b) on payment of a fee that is reasonable and does not exceed the fees prescribed under the Access to Information Act, by any other person.

• (4) Records referred to in paragraph 7(2)(b) and section 8 shall at all reasonable times be open to inspection by the directors.

Notice and Service

• 11 (1) A notice or document that is required to be sent to or served on a port authority may be sent by registered mail to the registered office of the port authority.

• (2) A notice or document required by the Act, these Regulations, the letters patent or the by-laws to be sent to or served on a director of a port authority may be sent by prepaid mail addressed, or may be delivered personally, to the director at the latest address shown for the director in the records of the port authority.

• (3) A notice or document sent by mail in accordance with this section is deemed to be received or served within the seven days after it was sent.

Corporate Seal

12 An instrument or agreement executed on behalf of a port authority is not invalid merely because a corporate seal is not affixed to it.

Certificates

• 13 (1) A certificate issued on behalf of a port authority stating any fact that is set out in the letters patent, by-laws, minutes of a meeting of the board of directors or a committee of directors, or in a trust indenture or other contract to which the port authority is a party, may be signed by a director or officer of the port authority.

• (2) When introduced as evidence in a civil, criminal, administrative, investigative or other proceeding, the following things are, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate:

  • (a) a fact stated in a certificate referred to in subsection (1); and

  • (b) a certified copy of minutes or a certified extract from minutes of a meeting of the board of directors or a committee of directors.

PART 2Directors and Officers

Meetings of Board of Directors and Committees of Directors

• 14 (1) Subject to the letters patent and the by-laws, the board of directors or a committee of directors of a port authority may meet at any place if reasonable notice is given.

• (2) The notice of a meeting of directors shall specify any of the following matters that are to be dealt with at the meeting, but, unless the by-laws provide otherwise, need not specify any other business to be transacted at the meeting:

  • (a) filling a vacancy in the office of chairperson or auditor;

  • (b) approving the annual financial statements;

  • (c) approving a borrowing;

  • (d) adopting a land use plan or business plan;

  • (e) adopting, amending or repealing by-laws; and

  • (f) authorizing or ratifying any activity carried on or to be carried on, or any power exercised or to be exercised, by a subsidiary of the port authority.

• (3) A director may in any manner waive notice of a meeting of directors, and the attendance of a director at a meeting is a waiver of notice of the meeting, except if a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting was not lawfully called.

• (4) Notice of an adjourned meeting is not required to be given if the time and place of the adjourned meeting are announced at the original meeting.

• (5) Subject to the by-laws, a director may attend a meeting by means of any telephonic, electronic or other communications facility that permits all persons participating in the meeting to communicate adequately with each other during the meeting, and a director participating in the meeting by those means is present at the meeting for the purposes of these Regulations.

Resolution in lieu of Meeting

• 15 (1) A resolution in writing signed by all the directors entitled to vote on the resolution is as valid as if it had been passed at a meeting of the board of directors or of a committee of directors, as the case may be.

• (2) A copy of every resolution shall be kept with the minutes of the proceedings of the board or committee.

Dissent of Directors

• 16 (1) A director of a port authority who is present at a meeting of the board of directors or of a committee of directors, whether the director abstains from voting on a resolution or an action to be taken at the meeting or remains silent, is deemed to have consented to any resolution passed or action taken at the meeting, unless

  • (a) the director requests that a dissent be entered in the minutes of the meeting or a dissent is so entered;

  • (b) the director sends a written dissent to the secretary of the meeting before the meeting is adjourned; or

  • (c) the director sends a dissent by registered mail, or delivers it, to the registered office of the port authority immediately after the meeting is adjourned.

• (2) A director who votes for or expressly consents to a resolution is not entitled to dissent.

• (3) A director who is not present at a meeting at which a resolution is passed or an action taken is deemed to have consented to the resolution or action unless, within seven days after becoming aware of the resolution or action, the director

  • (a) requests that a dissent be kept with the minutes of the meeting; or

  • (b) sends a dissent by registered mail, or delivers it, to the registered office of the port authority.

• (4) Subsection (3) does not apply to directors who absent themselves from a meeting in conformity with the code of conduct set out in the letters patent.

Validity of Acts of Directors and Officers

17 An act of a director or officer of a port authority is valid despite any irregularity in their appointment or election or any defect in their qualification.

Failure to Disclose a Material Contract

18 If a director or officer fails to disclose an interest in a material contract in accordance with the code of conduct set out in the letters patent, a court may, on the application of the Minister or the port authority, set aside the contract on such terms as it thinks fit.

Liability of Directors

19 The directors of a port authority are jointly and severally, or solidarily, liable to the employees of the port authority for all debts not exceeding six months wages payable for services performed by the employees for the port authority during the period in which the directors held office.

• 20 (1) A director is not liable under section 19 for any amount in respect of statutory or contractual termination of employment, for severance pay or for any punitive damages related to termination of employment.

• (2) A director is not liable under section 19 unless

  • (a) the port authority is sued for the debt within six months after it becomes due and execution is returned unsatisfied in whole or in part;

  • (b) the debt is proved within six months after the earlier of the day of issue of the notice of intention to dissolve and the day of issue of the certificate of dissolution; or

  • (c) the port authority makes an assignment or is made subject to a receiving order under the Bankruptcy and Insolvency Act and a claim for the debt is proved no later than six months after the date of the assignment or receiving order.

• (3) A director is not liable under section 19 unless the director is sued for the debt while in office or within two years after ceasing to be in office.