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CANADA BUSINESS CORPORATIONS ACT
05/11/2009 Important Notice: The following statute is subject to amendment and legislative changes, so particular attention should be directed to the date of the statute, with reference being made to the official government website for the most current version of this statute at www.laws.justice.gc.ca. Canada Business Corporations Act C-44 An Act respecting Canadian business corporations SHORT TITLE Short title 1. This Act may be cited as the Canada Business Corporations Act. R.S., 1985, c. C-44, s. 1; 1994, c. 24, s. 1(F). PART I INTERPRETATION AND APPLICATION Interpretation Definitions 2. (1) In this Act, "affairs" «affaires internes » "affairs" means the relationships among a corporation, its affiliates and the shareholders, directors and officers of such bodies corporate but does not include the business carried on by such bodies corporate; "affiliate" «groupe » "affiliate" means an affiliated body corporate within the meaning of subsection (2); "articles" «statuts » "articles" means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution, articles of revival and includes any amendments thereto; "associate" «liens » "associate" , in respect of a relationship with a person, means (a) a body corporate of which that person beneficially owns or controls, directly or indirectly, shares or securities currently convertible into shares carrying more than ten per cent of the voting rights under all circumstances or by reason of the occurrence of an event that has occurred and is continuing, or a currently exercisable option or right to purchase such shares or such convertible securities, (b) a partner of that person acting on behalf of the partnership of which they are partners, (c) a trust or estate in which that person has a substantial beneficial interest or in respect of which that person serves as a trustee or liquidator of the succession or in a similar capacity, (d) a spouse of that person or an individual who is cohabiting with that person in a conjugal relationship, having so cohabited for a period of at least one year, (e) a child of that person or of the spouse or individual referred to in paragraph (d), and (f) a relative of that person or of the spouse or individual referred to in paragraph (d), if that relative has the same residence as that person; "auditor" «vérificateur » "auditor" includes a partnership of auditors or an auditor that is incorporated; "beneficial interest" «véritable propriétaire » et «propriété effective » "beneficial interest" means an interest arising out of the beneficial ownership of securities; "beneficial ownership" «véritable propriétaire » et «propriété effective » "beneficial ownership" includes ownership through any trustee, legal representative, agent or other intermediary; "body corporate" «personne morale » "body corporate" includes a company or other body corporate wherever or however incorporated; "call" «option d’achat » "call" means an option transferable by delivery to demand delivery of a specified number or amount of securities at a fixed price within a specified time but does not include an option or right to acquire securities of the corporation that granted the option or right to acquire; "corporation" «société par actions » ou «société » "corporation" means a body corporate incorporated or continued under this Act and not discontinued under this Act; "court" «tribunal » "court" means (a) in the Provinces of Newfoundland and Prince Edward Island, the trial division of the Supreme Court of the Province, (a.1) in the Province of Ontario, the Superior Court of Justice, (b) in the Provinces of Nova Scotia and British Columbia, the Supreme Court of the Province, (c) in the Provinces of Manitoba, Saskatchewan, Alberta and New Brunswick, the Court of Queen’s Bench for the Province, (d) in the Province of Quebec, the Superior Court of the Province, and (e) the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice; "court of appeal" «Cour d’appel » "court of appeal" means the court to which an appeal lies from an order of a court; "debt obligation" «titre de créance » "debt obligation" means a bond, debenture, note or other evidence of indebtedness or guarantee of a corporation, whether secured or unsecured; "Director" «directeur » "Director" means the Director appointed under section 260; "director" , "directors" and "board of directors" «administrateur » et «conseil d’administration » "director" means a person occupying the position of director by whatever name called and "directors" and "board of directors" includes a single director; "distributing corporation" «société ayant fait appel au public » "distributing corporation" means, subject to subsections (6) and (7), a distributing corporation as defined in the regulations; "entity" «entité » "entity" means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization; "going-private transaction" «opération de fermeture » "going-private transaction" means a going-private transaction as defined in the regulations; "incorporator" «fondateur » "incorporator" means a person who signs articles of incorporation; "individual" «particulier » "individual" means a natural person; "liability" «passif » "liability" includes a debt of a corporation arising under section 40, subsection 190(25) and paragraphs 241(3)(f) and (g); "Minister" «ministre » "Minister" means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; "officer" «dirigeant » "officer" means an individual appointed as an officer under section 121, the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of a corporation, or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any of those offices; "ordinary resolution" «résolution ordinaire » "ordinary resolution" means a resolution passed by a majority of the votes cast by the shareholders who voted in respect of that resolution; "person" «personne » "person" means an individual, partnership, association, body corporate, or personal representative; "personal representative" «représentant personnel » "personal representative" means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a receiver, an agent, a liquidator of a succession, a guardian, a tutor, a curator, a mandatary or an attorney; "prescribed" «prescrit » ou «réglementaire » "prescribed" means prescribed by the regulations; "put" «option de vente » "put" means an option transferable by delivery to deliver a specified number or amount of securities at a fixed price within a specified time; "redeemable share" «action rachetable » "redeemable share" means a share issued by a corporation (a) that the corporation may purchase or redeem on the demand of the corporation, or (b) that the corporation is required by its articles to purchase or redeem at a specified time or on the demand of a shareholder; "resident Canadian" «résident canadien » "resident Canadian" means an individual who is (a) a Canadian citizen ordinarily resident in Canada, (b) a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of persons, or (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which he or she first became eligible to apply for Canadian citizenship; "security" «valeur mobilière » "security" means a share of any class or series of shares or a debt obligation of a corporation and includes a certificate evidencing such a share or debt obligation; "security interest" «sûreté » "security interest" means an interest in or charge on property of a corporation to secure payment of a debt or performance of any other obligation of the corporation; "send" «envoyer » "send" includes deliver; "series" «série » "series" , in relation to shares, means a division of a class of shares; "special resolution" «résolution spéciale » "special resolution" means a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders who voted in respect of that resolution or signed by all the shareholders entitled to vote on that resolution; "squeeze-out transaction" «opération d’éviction » "squeeze-out transaction" means a transaction by a corporation that is not a distributing corporation that would require an amendment to its articles and would, directly or indirectly, result in the interest of a holder of shares of a class of the corporation being terminated without the consent of the holder, and without substituting an interest of equivalent value in shares issued by the corporation, which shares have equal or greater rights and privileges than the shares of the affected class; "unanimous shareholder agreement" «convention unanime des actionnaires » "unanimous shareholder agreement" means an agreement described in subsection 146(1) or a declaration of a shareholder described in subsection 146(2). Affiliated bodies corporate (2) For the purposes of this Act, (a) one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person; and (b) if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other. Control (3) For the purposes of this Act, a body corporate is controlled by a person or by two or more bodies corporate if (a) securities of the body corporate to which are attached more than fifty per cent of the votes that may be cast to elect directors of the body corporate are held, other than by way of security only, by or for the benefit of that person or by or for the benefit of those bodies corporate; and (b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate. Holding body corporate (4) A body corporate is the holding body corporate of another if that other body corporate is its subsidiary. Subsidiary body corporate (5) A body corporate is a subsidiary of another body corporate if (a) it is controlled by (i) that other body corporate, (ii) that other body corporate and one or more bodies corporate each of which is controlled by that other body corporate, or (iii) two or more bodies corporate each of which is controlled by that other body corporate; or (b) it is a subsidiary of a body corporate that is a subsidiary of that other body corporate. Exemptions — on application by corporation (6) On the application of a corporation, the Director may determine that the corporation is not or was not a distributing corporation if the Director is satisfied that the determination would not be prejudicial to the public interest. Exemptions — classes of corporations (7) The Director may determine that a class of corporations are not or were not distributing corporations if the Director is satisfied that the determination would not be prejudicial to the public interest. Infants (8) For the purposes of this Act, the word "infant" has the same meaning as in the applicable provincial law and, in the absence of any such law, has the same meaning as the word "child" in the United Nations Convention on the Rights of the Child, adopted in the United Nations General Assembly on November 20, 1989. R.S., 1985, c. C-44, s. 2; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 6; 1992, c. 51, s. 30; 1994, c. 24, s. 2; 1998, c. 30, ss. 13(F), 15(E); 1999, c. 3, s. 16; 2000, c. 12, s. 27; 2001, c. 14, ss. 1, 135(E), c. 27, s. 209; 2002, c. 7, s. 88(E). Application Application of Act 3. (1) This Act applies to every corporation incorporated and every body corporate continued as a corporation under this Act that has not been discontinued under this Act. (2) [Repealed, 1991, c. 45, s. 551] Certain Acts do not apply (3) The following do not apply to a corporation: (a) the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970; (b) the Winding-up and Restructuring Act; and (c) the provisions of a Special Act, as defined in section 87 of the Canada Transportation Act, that are inconsistent with this Act. Limitations on business that may be carried on (4) No corporation shall carry on the business of (a) a bank; (a.1) an association to which the Cooperative Credit Associations Act applies; (b) a company or society to which the Insurance Companies Act applies; or (c) a company to which the Trust and Loan Companies Act applies. Limitations on business that may be carried on (5) No corporation shall carry on business as a degree-granting educational institution unless expressly authorized to do so by a federal or provincial agent that by law has the power to confer degree-granting authority on an educational institution. R.S., 1985, c. C-44, s. 3; 1991, c. 45, s. 551, c. 46, s. 595, c. 47, s. 719; 1992, c. 1, s. 142; 1994, c. 24, s. 3; 1996, c. 6, s. 167, c. 10, s. 212; 1999, c. 31, s. 63; 2001, c. 14, s. 2(F); 2007, c. 6, s. 399. Purposes of Act Purposes 4. The purposes of this Act are to revise and reform the law applicable to business corporations incorporated to carry on business throughout Canada, to advance the cause of uniformity of business corporation law in Canada and to provide a means of allowing an orderly transferance of certain federal companies incorporated under various Acts of Parliament to this Act. 1974-75-76, c. 33, s. 4. PART II INCORPORATION Incorporators 5. (1) One or more individuals not one of whom (a) is less than eighteen years of age, (b) is of unsound mind and has been so found by a court in Canada or elsewhere, or (c) has the status of bankrupt, may incorporate a corporation by signing articles of incorporation and complying with section 7. Bodies corporate (2) One or more bodies corporate may incorporate a corporation by signing articles of incorporation and complying with section 7. 1974-75-76, c. 33, s. 5. Articles of incorporation 6. (1) Articles of incorporation shall follow the form that the Director fixes and shall set out, in respect of the proposed corporation, (a) the name of the corporation; (b) the province in Canada where the registered office is to be situated; (c) the classes and any maximum number of shares that the corporation is authorized to issue, and (i) if there will be two or more classes of shares, the rights, privileges, restrictions and conditions attaching to each class of shares, and (ii) if a class of shares may be issued in series, the authority given to the directors to fix the number of shares in, and to determine the designation of, and the rights, privileges, restrictions and conditions attaching to, the shares of each series; (d) if the issue, transfer or ownership of shares of the corporation is to be restricted, a statement to that effect and a statement as to the nature of such restrictions; (e) the number of directors or, subject to paragraph 107(a), the minimum and maximum number of directors of the corporation; and (f) any restrictions on the businesses that the corporation may carry on. Additional provisions in articles (2) The articles may set out any provisions permitted by this Act or by law to be set out in the by-laws of the corporation. Special majorities (3) Subject to subsection (4), if the articles or a unanimous shareholder agreement require a greater number of votes of directors or shareholders than that required by this Act to effect any action, the provisions of the articles or of the unanimous shareholder agreement prevail. Idem (4) The articles may not require a greater number of votes of shareholders to remove a director than the number required by section 109. R.S., 1985, c. C-44, s. 6; 1994, c. 24, s. 4(F); 2001, c. 14, ss. 3, 134(F). Delivery of articles of incorporation 7. An incorporator shall send to the Director articles of incorporation and the documents required by sections 19 and 106. 1974-75-76, c. 33, s. 7. Certificate of incorporation 8. (1) Subject to subsection (2), on receipt of articles of incorporation, the Director shall issue a certificate of incorporation in accordance with section 262. Exception — failure to comply with Act (2) The Director may refuse to issue the certificate if a notice that is required to be sent under subsection 19(2) or 106(1) indicates that the corporation, if it came into existence, would not be in compliance with this Act. R.S., 1985, c. C-44, s. 8; 2001, c. 14, s. 4. Effect of certificate 9. A corporation comes into existence on the date shown in the certificate of incorporation. 1974-75-76, c. 33, s. 9. Name of corporation 10. (1) The word or expression "Limited", "Limitée", "Incorporated", "Incorporée", "Corporation" or "Société par actions de régime fédéral" or the corresponding abbreviation "Ltd.", "Ltée", "Inc.", "Corp." or "S.A.R.F." shall be part, other than only in a figurative or descriptive sense, of the name of every corporation, but a corporation may use and be legally designated by either the full or the corresponding abbreviated form. Saving for "S.C.C." (1.1) Subsection (1) does not apply to a corporation that has a corporate name that, immediately before the day on which this subsection comes into force, included, other than only in a figurative or descriptive sense, the expression "Société commerciale canadienne" or the abbreviation "S.C.C.", and any such corporation may use and be legally designated by either that expression or that abbreviation. Exemption (2) The Director may exempt a body corporate continued as a corporation under this Act from the provisions of subsection (1). Alternate name (3) Subject to subsection 12(1), the name of a corporation may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The corporation may use and may be legally designated by any such form. Alternative name outside Canada (4) Subject to subsection 12(1), a corporation may, for use outside Canada, set out its name in its articles in any language form and it may use and may be legally designated by any such form outside Canada. Publication of name (5) A corporation shall set out its name in legible characters in all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of the corporation. Other name (6) Subject to subsections (5) and 12(1), a corporation may carry on business under or identify itself by a name other than its corporate name if that other name does not contain, other than in a figurative or descriptive sense, either the word or expression "Limited", "Limitée", "Incorporated", "Incorporée", "Corporation" or "Société par actions de régime fédéral" or the corresponding abbreviation. R.S., 1985, c. C-44, s. 10; 1992, c. 1, s. 53; 1994, c. 24, s. 5; 2001, c. 14, s. 5. Reserving name 11. (1) The Director may, on request, reserve for ninety days a name for an intended corporation or for a corporation about to change its name. Designating number (2) If requested to do so by the incorporators or a corporation, the Director shall assign to the corporation as its name a designating number followed by the word "Canada" and a word or expression, or the corresponding abbreviation, referred to in subsection 10(1). R.S., 1985, c. C-44, s. 11; 1994, c. 24, s. 6. Prohibited names 12. (1) A corporation shall not be incorporated or continued as a corporation under this Act with, have, carry on business under or identify itself by a name (a) that is, as prescribed, prohibited or deceptively misdescriptive; or (b) that is reserved for another corporation or intended corporation under section 11. Directing change of name (2) If, through inadvertence or otherwise, a corporation (a) comes into existence or is continued with a name, or (b) on an application to change its name, is granted a name that contravenes this section, the Director may direct the corporation to change its name in accordance with section 173. (3) [Repealed, 1994, c. 24, s. 7] Idem (4) If a corporation has a designating number as its name, the Director may direct the corporation to change its name to a name other than a designating number in accordance with section 173. Undertaking to change name (4.1) Where a corporation acquires a name as a result of a person undertaking to dissolve or to change names, and the undertaking is not honoured, the Director may direct the corporation to change its name in accordance with section 173, unless the undertaking is honoured within the period specified in subsection (5). Revoking name (5) Where a corporation has been directed under subsection (2), (4) or (4.1) to change its name and has not within sixty days after the service of the directive to that effect changed its name to a name that complies with this Act, the Director may revoke the name of the corporation and assign a name to it and, until changed in accordance with section 173, the name of the corporation is thereafter the name so assigned. R.S., 1985, c. C-44, s. 12; 1994, c. 24, s. 7. Certificate of amendment 13. (1) When a corporation has had its name revoked and a name assigned to it under subsection 12(5), the Director shall issue a certificate of amendment showing the new name of the corporation and shall give notice of the change of name as soon as practicable in a publication generally available to the public. Effect of certificate (2) The articles of the corporation are amended accordingly on the date shown in the certificate of amendment. R.S., 1985, c. C-44, s. 13; 2001, c. 14, s. 6. Personal liability 14. (1) Subject to this section, a person who enters into, or purports to enter into, a written contract in the name of or on behalf of a corporation before it comes into existence is personally bound by the contract and is entitled to its benefits. Pre-incorporation and pre-amalgamation contracts (2) A corporation may, within a reasonable time after it comes into existence, by any action or conduct signifying its intention to be bound thereby, adopt a written contract made before it came into existence in its name or on its behalf, and on such adoption (a) the corporation is bound by the contract and is entitled to the benefits thereof as if the corporation had been in existence at the date of the contract and had been a party thereto; and (b) a person who purported to act in the name of or on behalf of the corporation ceases, except as provided in subsection (3), to be bound by or entitled to the benefits of the contract. Application to court (3) Subject to subsection (4), whether or not a written contract made before the coming into existence of a corporation is adopted by the corporation, a party to the contract may apply to a court for an order respecting the nature and extent of the obligations and liability under the contract of the corporation and the person who entered into, or purported to enter into, the contract in the name of or on behalf of the corporation. On the application, the court may make any order it thinks fit. Exemption from personal liability (4) If expressly so provided in the written contract, a person who purported to act in the name of or on behalf of the corporation before it came into existence is not in any event bound by the contract or entitled to the benefits thereof. R.S., 1985, c. C-44, s. 14; 2001, c. 14, s. 7. PART III CAPACITY AND POWERS Capacity of a corporation 15. (1) A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person. Idem (2) A corporation may carry on business throughout Canada. Extra-territorial capacity (3) A corporation has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Canada to the extent that the laws of such jurisdiction permit. 1974-75-76, c. 33, s. 15; 1978-79, c. 9, s. 6. Powers of a corporation 16. (1) It is not necessary for a by-law to be passed in order to confer any particular power on the corporation or its directors. Restricted business or powers (2) A corporation shall not carry on any business or exercise any power that it is restricted by its articles from carrying on or exercising, nor shall the corporation exercise any of its powers in a manner contrary to its articles. Rights preserved (3) No act of a corporation, including any transfer of property to or by a corporation, is invalid by reason only that the act or transfer is contrary to its articles or this Act. 1974-75-76, c. 33, s. 16. No constructive notice 17. No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning a corporation by reason only that the document has been filed by the Director or is available for inspection at an office of the corporation. 1974-75-76, c. 33, s. 17. Authority of directors, officers and agents 18. (1) No corporation and no guarantor of an obligation of a corporation may assert against a person dealing with the corporation or against a person who acquired rights from the corporation that (a) the articles, by-laws and any unanimous shareholder agreement have not been complied with; (b) the persons named in the most recent notice sent to the Director under section 106 or 113 are not the directors of the corporation; (c) the place named in the most recent notice sent to the Director under section 19 is not the registered office of the corporation; (d) a person held out by a corporation as a director, an officer or an agent of the corporation has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the corporation or usual for a director, officer or agent; (e) a document issued by any director, officer or agent of a corporation with actual or usual authority to issue the document is not valid or not genuine; or (f) a sale, lease or exchange of property referred to in subsection 189(3) was not authorized. Exception (2) Subsection (1) does not apply in respect of a person who has, or ought to have, knowledge of a situation described in that subsection by virtue of their relationship to the corporation. R.S., 1985, c. C-44, s. 18; 2001, c. 14, s. 8. PART IV REGISTERED OFFICE AND RECORDS Registered office 19. (1) A corporation shall at all times have a registered office in the province in Canada specified in its articles. Notice of registered office (2) A notice of registered office in the form that the Director fixes shall be sent to the Director together with any articles that designate or change the province where the registered office of the corporation is located. Change of address (3) The directors of a corporation may change the place and address of the registered office within the province specified in the articles. Notice of change of address (4) A corporation shall send to the Director, within fifteen days of any change of address of its registered office, a notice in the form that the Director fixes and the Director shall file it. R.S., 1985, c. C-44, s. 19; 2001, c. 14, s. 9. Corporate records 20. (1) A corporation shall prepare and maintain, at its registered office or at any other place in Canada designated by the directors, records containing (a) the articles and the by-laws, and all amendments thereto, and a copy of any unanimous shareholder agreement; (b) minutes of meetings and resolutions of shareholders; (c) copies of all notices required by section 106 or 113; and (d) a securities register that complies with section 50. Directors records (2) In addition to the records described in subsection (1), a corporation shall prepare and maintain adequate accounting records and records containing minutes of meetings and resolutions of the directors and any committee thereof. Retention of accounting records (2.1) Subject to any other Act of Parliament and to any Act of the legislature of a province that provides for a longer retention period, a corporation shall retain the accounting records referred to in subsection (2) for a period of six years after the end of the financial year to which the records relate. Records of continued corporations (3) For the purposes of paragraph (1)(b) and subsection (2), where a body corporate is continued under this Act, "records" includes similar records required by law to be maintained by the body corporate before it was so continued. Place of directors records (4) The records described in subsection (2) shall be kept at the registered office of the corporation or at such other place as the directors think fit and shall at all reasonable times be open to inspection by the directors. Records in Canada (5) If accounting records of a corporation are kept outside Canada, accounting records adequate to enable the directors to ascertain the financial position of the corporation with reasonable accuracy on a quarterly basis shall be kept at the registered office or any other place in Canada designated by the directors. When records or registers kept outside Canada (5.1) Despite subsections (1) and (5), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a corporation may keep all or any of its corporate records and accounting records referred to in subsection (1) or (2) at a place outside Canada, if (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or any other place in Canada designated by the directors; and (b) the corporation provides the technical assistance to facilitate an inspection referred to in paragraph (a). Offence (6) A corporation that, without reasonable cause, fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars. R.S., 1985, c. C-44, s. 20; 1994, c. 24, s. 8; 2001, c. 14, s. 10. Access to corporate records 21. (1) Subject to subsection (1.1), shareholders and creditors of a corporation, their personal representatives and the Director may examine the records described in subsection 20(1) during the usual business hours of the corporation, and may take extracts from the records, free of charge, and, if the corporation is a distributing corporation, any other person may do so on payment of a reasonable fee. Requirement for affidavit — securities register (1.1) Any person described in subsection (1) who wishes to examine the securities register of a distributing corporation must first make a request to the corporation or its agent, accompanied by an affidavit referred to in subsection (7). On receipt of the affidavit, the corporation or its agent shall allow the applicant access to the securities register during the corporation’s usual business hours, and, on payment of a reasonable fee, provide the applicant with an extract from the securities register. Copies of corporate records (2) A shareholder of a corporation is entitled on request and without charge to one copy of the articles and by-laws and of any unanimous shareholder agreement. Shareholder lists (3) Shareholders and creditors of a corporation, their personal representatives, the Director and, if the corporation is a distributing corporation, any other person, on payment of a reasonable fee and on sending to a corporation or its agent the affidavit referred to in subsection (7), may on application require the corporation or its agent to furnish within ten days after the receipt of the affidavit a list (in this section referred to as the "basic list") made up to a date not more than ten days before the date of receipt of the affidavit setting out the names of the shareholders of the corporation, the number of shares owned by each shareholder and the address of each shareholder as shown on the records of the corporation. Supplemental lists (4) A person requiring a corporation to furnish a basic list may, by stating in the affidavit referred to in subsection (3) that they require supplemental lists, require the corporation or its agent on payment of a reasonable fee to furnish supplemental lists setting out any changes from the basic list in the names or addresses of the shareholders and the number of shares owned by each shareholder for each business day following the date the basic list is made up to. When supplemental lists to be furnished (5) The corporation or its agent shall furnish a supplemental list required under subsection (4) (a) on the date the basic list is furnished, where the information relates to changes that took place prior to that date; and (b) on the business day following the day to which the supplemental list relates, where the information relates to changes that take place on or after the date the basic list is furnished. Holders of options (6) A person requiring a corporation to furnish a basic list or a supplemental list may also require the corporation to include in that list the name and address of any known holder of an option or right to acquire shares of the corporation. Contents of affidavit (7) The affidavit required under subsection (1.1) or (3) shall state (a) the name and address of the applicant; (b) the name and address for service of the body corporate, if the applicant is a body corporate; and (c) that the basic list and any supplemental lists obtained pursuant to subsection (4) or the information contained in the securities register obtained pursuant to subsection (1.1), as the case may be, will not be used except as permitted under subsection (9). Idem (8) If the applicant is a body corporate, the affidavit shall be made by a director or officer of the body corporate. Use of information or shareholder list (9) A list of shareholders or information from a securities register obtained under this section shall not be used by any person except in connection with (a) an effort to influence the voting of shareholders of the corporation; (b) an offer to acquire securities of the corporation; or (c) any other matter relating to the affairs of the corporation. Offence (10) A person who, without reasonable cause, contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. R.S., 1985, c. C-44, s. 21; 2001, c. 14, ss. 11, 135(E). Form of records 22. (1) All registers and other records required by this Act to be prepared and maintained may be in a bound or loose-leaf form or in a photographic film form, or may be entered or recorded by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time. Precautions (2) A corporation and its agents shall take reasonable precautions to (a) prevent loss or destruction of, (b) prevent falsification of entries in, and (c) facilitate detection and correction of inaccuracies in the registers and other records required by this Act to be prepared and maintained. Offence (3) A person who, without reasonable cause, contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. 1974-75-76, c. 33, s. 22; 1978-79, c. 9, s. 8. Corporate seal 23. (1) A corporation may, but need not, adopt a corporate seal, and may change a corporate seal that is adopted. Validity of unsealed documents (2) A document executed on behalf of a corporation is not invalid merely because a corporate seal is not affixed to it. R.S., 1985, c. C-44, s. 23; 2001, c. 14, s. 12. PART V CORPORATE FINANCE Shares 24. (1) Shares of a corporation shall be in registered form and shall be without nominal or par value. Transitional (2) When a body corporate is continued under this Act, a share with nominal or par value issued by the body corporate before it was so continued is, for the purpose of subsection (1), deemed to be a share without nominal or par value. Rights attached to shares (3) Where a corporation has only one class of shares, the rights of the holders thereof are equal in all respects and include the rights (a) to vote at any meeting of shareholders of the corporation; (b) to receive any dividend declared by the corporation; and (c) to receive the remaining property of the corporation on dissolution. Rights to classes of shares (4) The articles may provide for more than one class of shares and, if they so provide, (a) the rights, privileges, restrictions and conditions attaching to the shares of each class shall be set out therein; and (b) the rights set out in subsection (3) shall be attached to at least one class of shares but all such rights are not required to be attached to one class. R.S., 1985, c. C-44, s. 24; R.S., 1985, c. 1 (4th Supp.), s. 45(F). Issue of shares 25. (1) Subject to the articles, the by-laws and any unanimous shareholder agreement and to section 28, shares may be issued at such times and to such persons and for such consideration as the directors may determine. Shares non-assessable (2) Shares issued by a corporation are non-assessable and the holders are not liable to the corporation or to its creditors in respect thereof. Consideration (3) A share shall not be issued until the consideration for the share is fully paid in money or in property or past services that are not less in value than the fair equivalent of the money that the corporation would have received if the share had been issued for money. Consideration other than money (4) In determining whether property or past services are the fair equivalent of a money consideration, the directors may take into account reasonable charges and expenses of organization and reorganization and payments for property and past services reasonably expected to benefit the corporation. Definition of "property" (5) For the purposes of this section, "property" does not include a promissory note, or a promise to pay, that is made by a person to whom a share is issued, or a person who does not deal at arm’s length, within the meaning of that expression in the Income Tax Act, with a person to whom a share is issued. R.S., 1985, c. C-44, s. 25; 2001, c. 14, s. 13. Stated capital account 26. (1) A corporation shall maintain a separate stated capital account for each class and series of shares it issues. Entries in stated capital account (2) A corporation shall add to the appropriate stated capital account the full amount of any consideration it receives for any shares it issues. Exception for non-arm’s length transactions (3) Despite subsection (2), a corporation may, subject to subsection (4), add to the stated capital accounts maintained for the shares of classes or series the whole or any part of the amount of the consideration that it receives in an exchange if the corporation issues shares (a) in exchange for (i) property of a person who immediately before the exchange did not deal with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, (ii) shares of, or another interest in, a body corporate that immediately before the exchange, or that because of the exchange, did not deal with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, or (iii) property of a person who, immediately before the exchange, dealt with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, if the person, the corporation and all the holders of shares in the class or series of shares so issued consent to the exchange; or (b) pursuant to an agreement referred to in subsection 182(1) or an arrangement referred to in paragraph 192(1)(b) or (c) or to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated body corporate. Limit on addition to a stated capital account (4) On the issue of a share a corporation shall not add to a stated capital account in respect of the share it issues an amount greater than the amount of the consideration it received for the share. Constraint on addition to a stated capital account (5) Where a corporation proposes to add any amount to a stated capital account it maintains in respect of a class or series of shares, if (a) the amount to be added was not received by the corporation as consideration for the issue of shares, and (b) the corporation has issued any outstanding shares of more than one class or series, the addition to the stated capital account must be approved by special resolution unless all the issued and outstanding shares are shares of not more than two classes of convertible shares referred to in subsection 39(5). Other additions to stated capital (6) When a body corporate is continued under this Act, it may add to a stated capital account any consideration received by it for a share it issued and a corporation at any time may, subject to subsection (5), add to a stated capital account any amount it credited to a retained earnings or other surplus account. Transitional (7) When a body corporate is continued under this Act, subsection (2) does not apply to the consideration received by it before it was so continued unless the share in respect of which the consideration is received is issued after the corporation is so continued. Idem (8) When a body corporate is continued under this Act, any amount unpaid in respect of a share issued by the body corporate before it was so continued and paid after it was so continued shall be added to the stated capital account maintained for the shares of that class or series. Transitional (9) For the purposes of subsection 34(2), sections 38 and 42, and paragraph 185(2)(a), when a body corporate is continued under this Act its stated capital is deemed to include the amount that would have been included in stated capital if the body corporate had been incorporated under this Act. Restriction (10) A corporation shall not reduce its stated capital or any stated capital account except in the manner provided in this Act. Exception for an open-end mutual fund (11) Subsections (1) to (10) and any other provisions of this Act relating to stated capital do not apply to an open-end mutual fund. Definition of "open-end mutual fund" (12) For the purposes of this section, "open-end mutual fund" means a distributing corporation that carries on only the business of investing the consideration it receives for the shares it issues, and all or substantially all of those shares are redeemable on the demand of a shareholder. R.S., 1985, c. C-44, s. 26; 2001, c. 14, s. 14. Shares in series 27. (1) The articles may authorize, subject to any limitations set out in them, the issue of any class of shares in one or more series and may do either or both of the following: (a) fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of, each series; or (b) authorize the directors to fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of, each series. Series participation (2) If any cumulative dividends or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital. Restrictions on series (3) No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section shall confer on a series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding. Amendment of articles (4) If the directors exercise their authority under paragraph (1)(b), they shall, before the issue of shares of the series, send, in the form that the Director fixes, articles of amendment to the Director to designate a series of shares. Certificate of amendment (5) On receipt of articles of amendment designating a series of shares, the Director shall issue a certificate of amendment in accordance with section 262. Effect of certificate (6) The articles of the corporation are amended accordingly on the date shown in the certificate of amendment. R.S., 1985, c. C-44, s. 27; 2001, c. 14, s. 15. Pre-emptive right 28. (1) If the articles so provide, no shares of a class shall be issued unless the shares have first been offered to the shareholders holding shares of that class, and those shareholders have a pre-emptive right to acquire the offered shares in proportion to their holdings of the shares of that class, at such price and on such terms as those shares are to be offered to others. Exception (2) Notwithstanding that the articles provide the pre-emptive right referred to in subsection (1), shareholders have no pre-emptive right in respect of shares to be issued (a) for a consideration other than money; (b) as a share dividend; or (c) pursuant to the exercise of conversion privileges, options or rights previously granted by the corporation. 1974-75-76, c. 33, s. 28. Options and rights 29. (1) A corporation may issue certificates, warrants or other evidences of conversion privileges, options or rights to acquire securities of the corporation, and shall set out the conditions thereof (a) in the certificates, warrants or other evidences; or (b) in certificates evidencing the securities to which the conversion privileges, options or rights are attached. Transferable rights (2) Conversion privileges, options and rights to acquire securities of a corporation may be made transferable or non-transferable, and options and rights to acquire may be made separable or inseparable from any securities to which they are attached. Reserved shares (3) Where a corporation has granted privileges to convert any securities issued by the corporation into shares, or into shares of another class or series, or has issued or granted options or rights to acquire shares, if the articles limit the number of authorized shares, the corporation shall reserve and continue to reserve sufficient authorized shares to meet the exercise of such conversion privileges, options and rights. R.S., 1985, c. C-44, s. 29; 2001, c. 14, s. 16(F). Corporation holding its own shares 30. (1) Subject to subsection (2) and sections 31 to 36, a corporation (a) shall not hold shares in itself or in its holding body corporate; and (b) shall not permit any of its subsidiary bodies corporate to acquire shares of the corporation. Subsidiary holding shares of its parent (2) Subject to section 31, a corporation shall cause a subsidiary body corporate of the corporation that holds shares of the corporation to sell or otherwise dispose of those shares within five years from the date (a) the body corporate became a subsidiary of the corporation; or (b) the corporation was continued under this Act. R.S., 1985, c. C-44, s. 30; 2001, c. 14, s. 17. Exception 31. (1) A corporation may in the capacity of a legal representative hold shares in itself or in its holding body corporate unless it or the holding body corporate or a subsidiary of either of them has a beneficial interest in the shares. Idem (2) A corporation may hold shares in itself or in its holding body corporate by way of security for the purposes of a transaction entered into by it in the ordinary course of a business that includes the lending of money. Exception — subsidiary acquiring shares (3) A corporation may permit any of its subsidiary bodies corporate to acquire shares of the corporation (a) in the subsidiary’s capacity as a legal representative, unless the subsidiary would have a beneficial interest in the shares; or (b) by way of security for the purposes of a transaction entered into by the subsidiary in the ordinary course of a business that includes the lending of money. Exception — conditions precedent (4) A corporation may permit any of its subsidiary bodies corporate to acquire shares of the corporation through the issuance of those shares by the corporation to the subsidiary body corporate if, before the acquisition takes place, the conditions prescribed for the purposes of this subsection are met. Conditions subsequent (5) After an acquisition has taken place under the purported authority of subsection (4), the conditions prescribed for the purposes of this subsection must be met. Non-compliance with conditions (6) If (a) a corporation permits a subsidiary body corporate to acquire shares of the corporation under the purported authority of subsection (4), and (b) either (i) one or more of the conditions prescribed for the purposes of subsection (4) were not met, or (ii) one or more of the conditions prescribed for the purposes of subsection (5) are not met or cease to be met, then, notwithstanding subsections 16(3) and 26(2), the prescribed consequences apply in respect of the acquisition of the shares and their issuance. R.S., 1985, c. C-44, s. 31; 2001, c. 14, s. 18. Exception relating to Canadian ownership 32. (1) Subject to subsection 39(8), a corporation may, for the purpose of assisting the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control, hold shares in itself that (a) are not constrained for the purpose of assisting the corporation or any of its affiliates or associates to so qualify; or (b) are shares into which shares held under paragraph (a) were converted by the corporation that are constrained for the purpose of assisting the corporation to so qualify and that were not previously held by the corporation. Prohibited transfers (2) A corporation shall not transfer shares held under subsection (1) to any person unless the corporation is satisfied, on reasonable grounds, that the ownership of the shares as a result of the transfer would assist the corporation or any of its affiliates or associates to achieve the purpose set out in subsection (1). Offence (3) A corporation that, without reasonable cause, fails to comply with subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars. Directors of corporation (4) Where a corporation commits an offence under subsection (3), any director of the corporation who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the corporation has been prosecuted or convicted. Where shares are transferred (5) Where shares held under subsection (1) are transferred by a corporation, subsections 25(1), (3), (4) and (5), paragraph 115(3)(c) and subsection 118(1) apply, with such modifications as the circumstances require, in respect of the transfer as if the transfer were an issue. Transfer not void (6) No transfer of shares by a corporation shall be void or voidable solely because the transfer is in contravention of subsection (2). 1980-81-82-83, c. 115, s. 2. Voting shares 33. (1) A corporation holding shares in itself or in its holding body corporate shall not vote or permit those shares to be voted unless the corporation (a) holds the shares in the capacity of a legal representative; and (b) has complied with section 153. Subsidiary body corporate (2) A corporation shall not permit any of its subsidiary bodies corporate holding shares in the corporation to vote, or permit those shares to be voted, unless the subsidiary body corporate satisfies the requirements of subsection (1). R.S., 1985, c. C-44, s. 33; 2001, c. 14, s. 19. Acquisition of corporation’s own shares 34. (1) Subject to subsection (2) and to its articles, a corporation may purchase or otherwise acquire shares issued by it. Limitation (2) A corporation shall not make any payment to purchase or otherwise acquire shares issued by it if there are reasonable grounds for believing that (a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of its liabilities and stated capital of all classes. R.S., 1985, c. C-44, s. 34; 2001, c. 14, s. 20(F). Alternative acquisition of corporation’s own shares 35. (1) Notwithstanding subsection 34(2), but subject to subsection (3) and to its articles, a corporation may purchase or otherwise acquire shares issued by it to (a) settle or compromise a debt or claim asserted by or against the corporation; (b) eliminate fractional shares; or (c) fulfil the terms of a non-assignable agreement under which the corporation has an option or is obliged to purchase shares owned by a director, an officer or an employee of the corporation. Idem (2) Notwithstanding subsection 34(2), a corporation may purchase or otherwise acquire shares issued by it to (a) satisfy the claim of a shareholder who dissents under section 190; or (b) comply with an order under section 241. Limitation (3) A corporation shall not make any payment to purchase or acquire under subsection (1) shares issued by it if there are reasonable grounds for believing that (a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of (i) its liabilities, and (ii) the amount required for payment on a redemption or in a liquidation of all shares the holders of which have the right to be paid before the holders of the shares to be purchased or acquired, to the extent that the amount has not been included in its liabilities. R.S., 1985, c. C-44, s. 35; 2001, c. 14, s. 21. Redemption of shares 36. (1) Notwithstanding subsection 34(2) or 35(3), but subject to subsection (2) and to its articles, a corporation may purchase or redeem any redeemable shares issued by it at prices not exceeding the redemption price thereof stated in the articles or calculated according to a formula stated in the articles. Limitation (2) A corporation shall not make any payment to purchase or redeem any redeemable shares issued by it if there are reasonable grounds for believing that (a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of (i) its liabilities, and (ii) the amount that would be required to pay the holders of shares that have a right to be paid, on a redemption or in a liquidation, rateably with or before the holders of the shares to be purchased or redeemed, to the extent that the amount has not been included in its liabilities. R.S., 1985, c. C-44, s. 36; 2001, c. 14, s. 22. Donated shares 37. A corporation may accept from any shareholder a share of the corporation surrendered to it as a gift, but may not extinguish or reduce a liability in respect of an amount unpaid on any such share except in accordance with section 38. 1974-75-76, c. 33, s. 35. Other reduction of stated capital 38. (1) Subject to subsection (3), a corporation may by special resolution reduce its stated capital for any purpose including, without limiting the generality of the foregoing, for the purpose of (a) extinguishing or reducing a liability in respect of an amount unpaid on any share; (b) distributing to the holder of an issued share of any class or series of shares an amount not exceeding the stated capital of the class or series; and (c) declaring its stated capital to be reduced by an amount that is not represented by realizable assets. Contents of special resolution (2) A special resolution under this section shall specify the stated capital account or accounts from which the reduction of stated capital effected by the special resolution will be deducted. Limitation (3) A corporation shall not reduce its stated capital for any purpose other than the purpose mentioned in paragraph (1)(c) if there are reasonable grounds for believing that (a) the corporation is, or would after the reduction be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities. Recovery (4) A creditor of a corporation is entitled to apply to a court for an order compelling a shareholder or other recipient (a) to pay to the corporation an amount equal to any liability of the shareholder that was extinguished or reduced contrary to this section; or (b) to pay or deliver to the corporation any money or property that was paid or distributed to the shareholder or other recipient as a consequence of a reduction of capital made contrary to this section. Limitation (5) An action to enforce a liability imposed by this section may not be commenced after two years from the date of the act complained of. (6) [Repealed, 2001, c. 14, s. 23] R.S., 1985, c. C-44, s. 38; 2001, c. 14, s. 23. Adjustment of stated capital account 39. (1) On a purchase, redemption or other acquisition by a corporation under section 34, 35, 36, 45 or 190 or paragraph 241(3)(f), of shares or fractions thereof issued by it, the corporation shall deduct from the stated capital account maintained for the class or series of shares of which the shares purchased, redeemed or otherwise acquired form a part an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series or fractions thereof purchased, redeemed or otherwise acquired, divided by the number of issued shares of that class or series immediately before the purchase, redemption or other acquisition. Idem (2) A corporation shall deduct the amount of a payment made by the corporation to a shareholder under paragraph 241(3)(g) from the stated capital account maintained for the class or series of shares in respect of which the payment was made. Idem (3) A corporation shall adjust its stated capital account or accounts in accordance with any special resolution referred to in subsection 38(2). Idem (4) On a conversion of issued shares of a corporation into shares of another class or series or a change under section 173, 191 or 241 of issued shares of a corporation into shares of another class or series, the corporation shall (a) deduct from the stated capital account maintained for the class or series of shares converted or changed an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series converted or changed, divided by the number of issued shares of that class or series immediately before the conversion or change; and (b) add the result obtained under paragraph (a) and any additional consideration received pursuant to the conversion or change to the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been converted or changed. Stated capital of interconvertible shares (5) For the purposes of subsection (4) and subject to its articles, where a corporation issues two classes of shares and there is attached to each such class a right to convert a share of the one class into a share of the other class, if a share of one class is converted into a share of the other class, the amount of stated capital attributable to a share in either class is the aggregate of the stated capital of both classes divided by the number of issued shares of both classes immediately before the conversion. Cancellation or restoration of shares (6) Shares or fractions thereof of any class or series of shares issued by a corporation and purchased, redeemed or otherwise acquired by it shall be cancelled or, if the articles limit the number of authorized shares, may be restored to the status of authorized but unissued shares of the class. Exception (7) For the purposes of this section, a corporation holding shares in itself as permitted by subsections 31(1) and (2) is deemed not to have purchased, redeemed or otherwise acquired such shares. Idem (8) For the purposes of this section, a corporation holding shares in itself as permitted by paragraph 32(1)(a) is deemed not to have purchased, redeemed or otherwise acquired the shares at the time they were acquired, but (a) any of those shares that are held by the corporation at the expiration of two years, and (b) any shares into which any of those shares were converted by the corporation and held under paragraph 32(1)(b) that are held by the corporation at the expiration of two years after the shares from which they were converted were acquired are deemed to have been acquired at the expiration of the two years. Conversion or change of shares (9) Shares issued by a corporation and converted into shares of another class or series or changed under section 173, 191 or 241 into shares of another class or series shall become issued shares of the class or series of shares into which the shares have been converted or changed. Effect of change of shares on number of unissued shares (10) Where the articles limit the number of authorized shares of a class of shares of a corporation and issued shares of that class or of a series of shares of that class have become, pursuant to subsection (9), issued shares of another class or series, the number of unissued shares of the first-mentioned class shall, unless the articles otherwise provide, be increased by the number of shares that, pursuant to subsection (9), became shares of another class or series. Repayment (11) Debt obligations issued, pledged, hypothecated or deposited by a corporation are not redeemed by reason only that the indebtedness evidenced by the debt obligations or in respect of which the debt obligations are issued, pledged, hypothecated or deposited is repaid. Acquisition and reissue of debt obligations (12) Debt obligations issued by a corporation and purchased, redeemed or otherwise acquired by it may be cancelled or, subject to any applicable trust indenture or other agreement, may be reissued, pledged or hypothecated to secure any obligation of the corporation then existing or thereafter incurred, and any such acquisition and reissue, pledge or hypothecation is not a cancellation of the debt obligations. R.S., 1985, c. C-44, s. 39; 1994, c. 24, s. 9(F); 2001, c. 14, s. 24(F). Enforcement of contract to buy shares 40. (1) A corporation shall fulfil its obligations under a contract to buy shares of the corporation, except if the corporation can prove that enforcement of the contract would put it in breach of any of sections 34 to 36. Status of contracting party (2) Until the corporation has fulfilled all its obligations under a contract referred to in subsection (1), the other party retains the status of claimant entitled to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors and to the rights of holders of any class of shares whose rights were in priority to the rights given to the holders of the class of shares being purchased, but in priority to the rights of other shareholders. (3) [Repealed, 2001, c. 14, s. 25] R.S., 1985, c. C-44, s. 40; 2001, c. 14, s. 25. Commission for sale of shares 41. The directors may authorize the corporation to pay a reasonable commission to any person in consideration of the person’s purchasing or agreeing to purchase shares of the corporation from the corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares. R.S., 1985, c. C-44, s. 41; 2001, c. 14, s. 135(E). Dividends 42. A corporation shall not declare or pay a dividend if there are reasonable grounds for believing that (a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities and stated capital of all classes. 1974-75-76, c. 33, s. 40. Form of dividend 43. (1) A corporation may pay a dividend by issuing fully paid shares of the corporation and, subject to section 42, a corporation may pay a dividend in money or property. Adjustment of stated capital account (2) If shares of a corporation are issued in payment of a dividend, the declared amount of the dividend stated as an amount of money shall be added to the stated capital account maintained or to be maintained for the shares of the class or series issued in payment of the dividend. 1974-75-76, c. 33, s. 41; 1978-79, c. 9, s. 16. 44. [Repealed, 2001, c. 14, s. 26] Shareholder immunity 45. (1) The shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation except under subsection 38(4), 118(4) or (5), 146(5) or 226(4) or (5). Lien on shares (2) Subject to subsection 49(8), the articles may provide that the corporation has a lien on a share registered in the name of a shareholder or the shareholder’s personal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act. Enforcement of lien (3) A corporation may enforce a lien referred to in subsection (2) in accordance with its by-laws. R.S., 1985, c. C-44, s. 45; 2001, c. 14, s. 27. PART VI SALE OF CONSTRAINED SHARES Sale of constrained shares by corporation 46. (1) A corporation that has constraints on the issue, transfer or ownership of its shares of any class or series may, for any of the purposes referred to in paragraphs (a) to (c), sell, under the conditions and after giving the notice that may be prescribed, as if it were the owner of the shares, any of those constrained shares that are owned, or that the directors determine in the manner that may be prescribed may be owned, contrary to the constraints in order to (a) assist the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control; (b) assist the corporation to comply with any prescribed law; or (c) attain or maintain a level of Canadian ownership specified in its articles. Obligations of directors in sale (2) Where shares are to be sold by a corporation under subsection (1), the directors of the corporation shall select the shares for sale in good faith and in a manner that is not unfairly prejudicial to, and does not unfairly disregard the interests of, the holders of the shares in the constrained class or series taken as a whole. Effect of sale (3) Where shares are sold by a corporation under subsection (1), the owner of the shares immediately prior to the sale shall by that sale be divested of their interest in the shares, and the person who, but for the sale, would be the registered owner of the shares or a person who satisfies the corporation that, but for the sale, they could properly be treated as the registered owner or registered holder of the shares under section 51 shall, from the time of the sale, be entitled to receive only the net proceeds of the sale, together with any income earned thereon from the beginning of the month next following the date of the receipt by the corporation of the proceeds of the sale, less any taxes thereon and any costs of administration of a trust fund constituted under subsection 47(1) in relation thereto. Subsections 51(4) to (6) apply (4) Subsections 51(4) to (6) apply in respect of the person who is entitled under subsection (3) to receive the proceeds of a sale of shares under subsection (1) as if the proceeds were a security and the person were a registered holder or owner of the security. R.S., 1985, c. C-44, s. 46; 1991, c. 45, s. 552, c. 47, s. 720; 2001, c. 14, ss. 28, 135(E). Proceeds of sale to be trust fund 47. (1) The proceeds of a sale by a corporation under subsection 46(1) constitute a trust fund in the hands of the corporation for the benefit of the person entitled under subsection 46(3) to receive the proceeds of the sale, and any such trust fund may be commingled by the corporation with other such trust funds and shall be invested in such manner as may be prescribed. Costs of administration (2) Reasonable costs of administration of a trust fund referred to in subsection (1) may be deducted from the trust fund and any income earned thereon. Appointment of trust company (3) Subject to this section, a corporation may transfer any trust fund referred to in subsection (1), and the administration thereof, to a trust company in Canada registered as such under the laws of Canada or a province, and the corporation is thereupon discharged of all further liability in respect of the trust fund. Discharge of corporation and trust company (4) A receipt signed by a person entitled under subsection 46(3) to receive the proceeds of a sale that constitute a trust fund under subsection (1) shall be a complete discharge of the corporation and of any trust company to which a trust fund is transferred under subsection (3), in respect of the trust fund and income earned thereon paid to such person. Vesting in Crown (5) A trust fund described in subsection (1), together with any income earned thereon, less any taxes thereon and costs of administration, that has not been claimed by a person entitled under subsection 46(3) to receive the proceeds of a sale that constitute the trust fund for a period of ten years after the date of the sale vests in Her Majesty in right of Canada. Escheats Act applies (6) Sections 3 to 5 of the Escheats Act apply in respect of a trust fund that vests in Her Majesty in right of Canada under subsection (5). 1980-81-82-83, c. 115, s. 4. PART VII SECURITY CERTIFICATES, REGISTERS AND TRANSFERS Interpretation and General Application of Part 48. (1) The transfer or transmission of a security shall be governed by this Part. Definitions (2) In this Part, "adverse claim" «opposition » "adverse claim" includes a claim that a transfer was or would be wrongful or that a particular adverse person is the owner of or has an interest in the security; "bearer" «porteur » "bearer" means the person in possession of a security payable to bearer or endorsed in blank; "bona fide purchaser" «acheteur de bonne foi » "bona fide purchaser" means a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form or order form or of a security in registered form issued or endorsed to the purchaser or endorsed in blank; "broker" «courtier » "broker" means a person who is engaged, whether or not exclusively, in the business of buying and selling securities and who, in the transaction concerned, acts for, or buys a security from, or sells a security to a customer; "delivery" «livraison » ou «remise » "delivery" means voluntary transfer of possession; "fiduciary" «représentant » "fiduciary" means any person acting in a fiduciary capacity and includes a personal representative of a deceased person; "fungible" «fongibles » "fungible" , in relation to securities, means securities of which any unit is, by nature or usage of trade, the equivalent of any other like unit; "genuine" «authentique » "genuine" means free of forgery or counterfeiting; "good faith" «bonne foi » "good faith" means honesty in fact in the conduct of the transaction concerned; "holder" «détenteur » "holder" means a person in possession of a security issued or endorsed to the person or the bearer or in blank; "issuer" «émetteur » "issuer" includes a corporation (a) that is required by this Act to maintain a securities register, or (b) that directly or indirectly creates fractional interests in its rights or property and that issues securities as evidence of such fractional interests; "overissue" «émission excédentaire » "overissue" means the issue of securities in excess of any maximum number of securities that the issuer is authorized by its articles or a trust indenture to issue; "purchaser" «acquéreur » "purchaser" means a person who takes an interest in a security by sale, mortgage, hypothec, pledge, issue, reissue, gift or any other voluntary transaction; "security" or "security certificate" «valeur mobilière » ou «certificat de valeur mobilière » "security" or "security certificate" means an instrument issued by a corporation that is (a) in bearer, order or registered form, (b) of a type commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment, (c) one of a class or series or by its terms divisible into a class or series of instruments, and (d) evidence of a share, participation or other interest in or obligation of a corporation; "transfer" «transfert » "transfer" includes transmission by operation of law; "trust indenture" «acte de fiducie » "trust indenture" means a trust indenture as defined in section 82; "unauthorized" «non autorisé » "unauthorized" , in relation to a signature or an endorsement, means one made without actual, implied or apparent authority and includes a forgery; "valid" «valide » "valid" means issued in accordance with the applicable law and the articles of the issuer, or validated under section 52. Negotiable instruments (3) Except where its transfer is restricted and noted on a security in accordance with subsection 49(8), a security is a negotiable instrument. Registered form (4) A security is in registered form if (a) it specifies a person entitled to the security or to the rights it evidences, and its transfer is capable of being recorded in a securities register; or (b) it bears a statement that it is in registered form. Order form (5) A debt obligation is in order form where, by its terms, it is payable to the order or assigns of any person therein specified with reasonable certainty or to that person’s order. Bearer form (6) A security is in bearer form if it is payable to bearer according to its terms and not by reason of any endorsement. Guarantor for issuer (7) A guarantor for an issuer is deemed to be an issuer to the extent of the guarantee whether or not the obligation is noted on the security. R.S., 1985, c. C-44, s. 48; 2001, c. 14, ss. 29, 135(E). Rights of holder 49. (1) Every security holder is entitled at their option to a security certificate that complies with this Act or a non-transferable written acknowledgment of their right to obtain such a security certificate from a corporation in respect of the securities of that corporation held by them. Maximum fee for certificate by regulation (2) A corporation may charge a fee, not exceeding the prescribed amount, for a security certificate issued in respect of a transfer. Joint holders (3) A corporation is not required to issue more than one security certificate in respect of securities held jointly by several persons, and delivery of a certificate to one of several joint holders is sufficient delivery to all. Signatures (4) A security certificate shall be signed by at least one of the following persons, or the signature shall be printed or otherwise mechanically reproduced on the certificate: (a) a director or officer of the corporation; (b) a registrar, transfer agent or branch transfer agent of the corporation, or an individual on their behalf; and (c) a trustee who certifies it in accordance with a trust indenture. (5) [Repealed, 2001, c. 14, s. 30] Continuation of signature (6) If a security certificate contains a printed or mechanically reproduced signature of a person, the corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the corporation, and the security certificate is as valid as if the person were a director or an officer at the date of its issue. Contents of share certificate (7) There shall be stated on the face of each share certificate issued by a corporation (a) the name of the corporation; (b) the words "Incorporated under the Canada Business Corporations Act" or "subject to the Canada Business Corporations Act"; (c) the name of the person to whom it was issued; and (d) the number and class of shares and the designation of any series that the certificate represents. Restrictions (8) No restriction, charge, agreement or endorsement described in the following paragraphs is effective against a transferee of a security, issued by a corporation or by a body corporate before the body corporate was continued under this Act, who has no actual knowledge of the restriction, charge, agreement or endorsement unless it or a reference to it is noted conspicuously on the security certificate: (a) a restriction on transfer other than a constraint under section 174; (b) a charge in favour of the corporation; (c) a unanimous shareholder agreement; or (d) an endorsement under subsection 190(10). Limit on restriction (9) A distributing corporation, any of the issued shares of which remain outstanding and are held by more than one person, shall not have a restriction on the transfer or ownership of its shares of any class or series except by way of a constraint permitted under section 174. Notation of constraint (10) Where the articles of a corporation constrain the issue, transfer or ownership of shares of any class or series in order to assist (a) the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control, or (b) the corporation to comply with any prescribed law, the constraint, or a reference to it, shall be conspicuously noted on every security certificate of the corporation evidencing a share that is subject to the constraint where the security certificate is issued after the day on which the share becomes subject to the constraint under this Act. Failure to note (11) The failure to note a constraint or a reference to it pursuant to subsection (10) shall not invalidate any share or security certificate and shall not render a constraint ineffective against an owner, holder or transferee of the share or security certificate. Transitional (12) If a body corporate continued under this Act has outstanding security certificates, and if the words "private company" appear on the certificates, those words are deemed to be a notice of a restriction, lien, agreement or endorsement for the purpose of subsection (8). Particulars of class (13) There shall be stated legibly on a share certificate issued by a corporation that is authorized to issue shares of more than one class or series (a) the rights, privileges, restrictions and conditions attached to the shares of each class and series that exists when the share certificate is issued; or (b) that the class or series of shares that it represents has rights, privileges, restrictions or conditions attached thereto and that the corporation will furnish a shareholder, on demand and without charge, with a full copy of the text of (i) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors, and (ii) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series. Duty (14) Where a share certificate issued by a corporation contains the statement mentioned in paragraph (13)(b), the corporation shall furnish a shareholder, on demand and without charge, with a full copy of the text of (a) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors; and (b) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series. Fractional share (15) A corporation may issue a certificate for a fractional share or may issue in place thereof scrip certificates in bearer form that entitle the holder to receive a certificate for a full share by exchanging scrip certificates aggregating a full share. Scrip certificates (16) The directors may attach conditions to any scrip certificates issued by a corporation, including conditions that (a) the scrip certificates become void if not exchanged for a share certificate representing a full share before a specified date; and (b) any shares for which such scrip certificates are exchangeable may, notwithstanding any pre-emptive right, be issued by the corporation to any person and the proceeds thereof distributed rateably to the holders of the scrip certificates. Holder of fractional share (17) A holder of a fractional share issued by a corporation is not entitled to exercise voting rights or to receive a dividend in respect of the fractional share, unless (a) the fractional share results from a consolidation of shares; or (b) the articles of the corporation otherwise provide. Holder of scrip certificate (18) A holder of a scrip certificate is not entitled to exercise voting rights or to receive a dividend in respect of the scrip certificate. R.S., 1985, c. C-44, s. 49; 1991, c. 45, s. 553, c. 47, s. 721; 1994, c. 24, s. 34(F); 2001, c. 14, ss. 30, 135(E). Securities records 50. (1) A corporation shall maintain a securities register in which it records the securities issued by it in registered form, showing with respect to each class or series of securities (a) the names, alphabetically arranged, and the latest known address of each person who is or has been a security holder; (b) the number of securities held by each security holder; and (c) the date and particulars of the issue and transfer of each security. Central and branch registers (2) A corporation may appoint an agent to maintain a central securities register and branch securities registers. Place of register (3) A central securities register shall be maintained by a corporation at its registered office or at any other place in Canada designated by the directors, and any branch securities registers may be kept at any place in or out of Canada designated by the directors. Effect of registration (4) Registration of the issue or transfer of a security in the central securities register or in a branch securities register is complete and valid registration for all purposes. Branch register (5) A branch securities register shall only contain particulars of securities issued or transferred at that branch. Central register (6) Particulars of each issue or transfer of a security registered in a branch securities register shall also be kept in the corresponding central securities register. Destruction of certificates (7) A corporation, its agent or a trustee defined in subsection 82(1) is not required to produce (a) a cancelled security certificate in registered form, an instrument referred to in subsection 29(1) that is cancelled or a like cancelled instrument in registered form six years after the date of its cancellation; (b) a cancelled security certificate in bearer form or an instrument referred to in subsection 29(1) that is cancelled or a like cancelled instrument in bearer form after the date of its cancellation; or (c) an instrument referred to in subsection 29(1) or a like instrument, irrespective of its form, after the date of its expiration. 1974-75-76, c. 33, s. 46; 1978-79, c. 9, s. 20. Dealings with registered holder 51. (1) A corporation or a trustee defined in subsection 82(1) may, subject to sections 134, 135 and 138, treat the registered owner of a security as the person exclusively entitled to vote, to receive notices, to receive any interest, dividend or other payments in respect of the security, and otherwise to exercise all the rights and powers of an owner of the security. Constructive registered holder (2) Notwithstanding subsection (1), a corporation whose articles restrict the right to transfer its securities shall, and any other corporation may, treat a person as a registered security holder entitled to exercise all the rights of the security holder that the person represents, if the person furnishes the corporation with evidence as described in subsection 77(4) that the person is (a) the heir of a deceased security holder, or the personal representative of the heirs, or the personal representative of the estate of a deceased security holder; (b) a personal representative of a registered security holder who is an infant, an incompetent person or a missing person; or (c) a liquidator of, or a trustee in bankruptcy for, a registered security holder. Permissible registered holder (3) If a person on whom the ownership of a security devolves by operation of law, other than a person described in subsection (2), furnishes proof of the person’s authority to exercise rights or privileges in respect of a security of the corporation that is not registered in the person’s name, the corporation shall treat the person as entitled to exercise those rights or privileges. Immunity of corporation (4) A corporation is not required to inquire into the existence of, or see to the performance or observance of, any duty owed to a third person by a registered holder of any of its securities or by anyone whom it treats, as permitted or required by this section, as the owner or registered holder thereof. Persons less than eighteen years of age (5) If a person who is less than eighteen years of age exercises any rights of ownership in the securities of a corporation, no subsequent repudiation or avoidance is effective against the corporation. Joint holders (6) A corporation may treat as owner of a security the survivors of persons to whom the security was issued as joint holders, if it receives proof satisfactory to it of the death of any such joint holder. Transmission of securities (7) Subject to any applicable law relating to the collection of taxes, a person referred to in paragraph (2)(a) is entitled to become a registered holder, or to designate a registered holder, if the person deposits with the corporation or its transfer agent (a) the original grant of probate or of letters of administration, or a copy thereof certified to be a true copy by (i) the court that granted the probate or letters of administration, (ii) a trust company incorporated under the laws of Canada or a province, or (iii) a lawyer or notary acting on behalf of the person referred to in paragraph (2)(a), or (b) in the case of transmission by notarial will in the Province of Quebec, a copy thereof authenticated pursuant to the laws of that Province, together with (c) an affidavit or declaration of transmission made by a person referred to in paragraph (2)(a), stating the particulars of the transmission, and (d) the security certificate that was owned by the deceased holder (i) in case of a transfer to a person referred to in paragraph (2)(a), with or without the endorsement of that person, and (ii) in case of a transfer to any other person, endorsed in accordance with section 65, and accompanied by any assurance the corporation may require under section 77. Excepted transmissions (8) Despite subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration in respect of the transmission, a personal representative of the deceased holder is entitled, subject to any applicable law relating to the collection of taxes, to become a registered holder or to designate a registered holder, if the personal representative deposits with the corporation or its transfer agent (a) the security certificate that was owned by the deceased holder; and (b) reasonable proof of the governing laws, of the deceased holder’s interest in the security and of the right of the personal representative or the person designated by the personal representative to become the registered holder. Right of corporation (9) Deposit of the documents required by subsection (7) or (8) empowers a corporation or its transfer agent to record in a securities register the transmission of a security from the deceased holder to a person referred to in paragraph (2)(a) or to such person as the person referred to in that paragraph may designate and, thereafter, to treat the person who thus becomes a registered holder as the owner of those securities. R.S., 1985, c. C-44, s. 51; 2001, c. 14, ss. 31, 135(E). Overissue 52. (1) The provisions of this Part that validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overissue, but (a) if a valid security, similar in all respects to the security involved in the overissue, is reasonably available for purchase, the person entitled to the validation or issue may compel the issuer to purchase and deliver such a security against surrender of the security that the person holds; (b) if a valid security, similar in all respects to the security involved in the overissue, is not reasonably available for purchase, the person entitled to the validation or issue may recover from the issuer an amount equal to the price the last purchaser for value paid for the invalid security. Retroactive validation (2) When an issuer amends its articles or a trust indenture to which it is a party to increase its authorized securities to a number equal to or in excess of the number of securities previously authorized plus the amount of the securities overissued, the securities so overissued are valid from the date of their issue. Payment not a purchase or redemption (3) A purchase or payment by an issuer under subsection (1) is not a purchase or payment to which section 34, 35, 36 or 39 applies. R.S., 1985, c. C-44, s. 52; 2001, c. 14, s. 135(E). Burden of proof 53. In an action on a security, (a) unless specifically denied in the pleadings, each signature on the security or in a necessary endorsement is admitted; (b) a signature on the security is presumed to be genuine and authorized but, if the effectiveness of the signature is put in issue, the burden of establishing that it is genuine and authorized is on the party claiming under the signature; (c) if a signature is admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defence or a defect going to the validity of the security; and (d) if the defendant establishes that a defence or defect exists, the plaintiff has the burden of establishing that the defence or defect is ineffective against the plaintiff or some person under whom the plaintiff claims. R.S., 1985, c. C-44, s. 53; 2001, c. 14, s. 135(E). Securities fungible 54. Unless otherwise agreed, and subject to any applicable law, regulation or stock exchange rule, a person required to deliver securities may deliver any security of the specified issue in bearer form or registered in the name of the transferee or endorsed to the transferee or in blank. R.S., 1985, c. C-44, s. 54; 2001, c. 14, s. 135(E). Issue—Issuer Notice of defect 55. (1) Even against a purchaser for value without notice of a defect going to the validity of a security, the terms of the security include those stated on the security and those incorporated therein by reference to another instrument, statute, rule, regulation or order to the extent that the terms so incorporated do not conflict with the stated terms, but such a reference is not of itself notice to a purchaser for value of a defect going to the validity of the security, notwithstanding that the security expressly states that a person accepting it admits such notice. Purchaser for value (2) A security is valid in the hands of a purchaser for value without notice of any defect going to its validity. Lack of genuineness (3) Subject to section 57, the fact that a security is not genuine is a complete defence even against a purchaser for value without notice. Ineffective defences (4) All other defences of an issuer, including non-delivery and conditional delivery of a security, are ineffective against a purchaser for value without notice of the particular defence. 1974-75-76, c. 33, s. 51. Staleness as notice of defect 56. After an event that creates a right to immediate performance of the principal obligation evidenced by a security, or that sets a date on or after which a security is to be presented or surrendered for redemption or exchange, a purchaser is deemed to have notice of any defect in its issue or of any defence of the issuer, (a) if the event requires the payment of money or the delivery of securities, or both, on presentation or surrender of the security, and such money or securities are available on the date set for payment or exchange, and the purchaser takes the security more than one year after that date; or (b) if the purchaser takes the security more than two years after the date set for presentation or surrender or the date on which such performance became due. R.S., 1985, c. C-44, s. 56; 2001, c. 14, s. 135(E). Unauthorized signature 57. An unauthorized signature on a security before or in the course of its issue is ineffective, except that the signature is effective in favour of a purchaser for value and without notice of the lack of authority, if the signing has been done by (a) an authenticating trustee, registrar, transfer agent or other person entrusted by the issuer with the signing of the security, or of similar securities, or their immediate preparation for signing; or (b) an employee of the issuer or of a person referred to in paragraph (a) who in the ordinary course of their duties handles the security. R.S., 1985, c. C-44, s. 57; 2001, c. 14, s. 135(E). Completion or alteration 58. (1) Where a security contains the signatures necessary for its issue or transfer but is incomplete in any other respect, (a) any person may complete it by filling in the blanks in accordance with their authority; and (b) notwithstanding that the blanks are incorrectly filled in, the security as completed is enforceable by a purchaser who took it for value and without notice of such incorrectness. Enforceability (2) A completed security that has been improperly altered, even if fraudulently altered, remains enforceable but only according to its original terms. R.S., 1985, c. C-44, s. 58; 2001, c. 14, s. 135(E). Warranties of agents 59. (1) A person signing a security as authenticating trustee, registrar, transfer agent or other person entrusted by the issuer with the signing of the security warrants to a purchaser for value without notice that (a) the security is genuine; (b) the person’s acts in connection with the issue of the security are within their authority; and (c) the person has reasonable grounds for believing that the security is in the form and within the amount the issuer is authorized to issue. Limitation of liability (2) Unless otherwise agreed, a person referred to in subsection (1) does not assume any further liability for the validity of a security. R.S., 1985, c. C-44, s. 59; 2001, c. 14, s. 135(E). Purchase Title of purchaser 60. (1) On delivery of a security the purchaser acquires the rights in the security that the transferor had or had authority to convey, except that a purchaser who has been a party to any fraud or illegality affecting the security or who as a prior holder had notice of an adverse claim does not improve their position by taking from a later bona fide purchaser. Title of bona fide purchaser (2) A bona fide purchaser, in addition to acquiring the rights of a purchaser, also acquires the security free from any adverse claim. Limited interest (3) A purchaser of a limited interest acquires rights only to the extent of the interest purchased. R.S., 1985, c. C-44, s. 60; 2001, c. 14, s. 135(E). Deemed notice of adverse claim 61. (1) A purchaser of a security, or any broker for a seller or purchaser, is deemed to have notice of an adverse claim if (a) the security, whether in bearer or registered form, has been endorsed "for collection" or "for surrender" or for some other purpose not involving transfer; or (b) the security is in bearer form and has on it a statement that it is the property of a person other than the transferor, except that the mere writing of a name on a security is not such a statement. Notice of fiduciary duty (2) Notwithstanding that a purchaser, or any broker for a seller or purchaser, has notice that a security is held for a third person or is registered in the name of or endorsed by a fiduciary, they have no duty to inquire into the rightfulness of the transfer and have no notice of an adverse claim, except that where they know that the consideration is to be used for, or that the transaction is for, the personal benefit of the fiduciary or is otherwise in breach of the fiduciary’s duty, the purchaser or broker is deemed to have notice of an adverse claim. R.S., 1985, c. C-44, s. 61; 2001, c. 14, s. 135(E). Staleness as notice of adverse claim 62. An event that creates a right to immediate performance of the principal obligation evidenced by a security or that sets a date on or after which the security is to be presented or surrendered for redemption or exchange is not of itself notice of an adverse claim, except in the case of a purchase (a) after one year from any date set for such presentation or surrender for redemption or exchange; or (b) after six months from any date set for payment of money against presentation or surrender of the security if funds are available for payment on that date. 1974-75-76, c. 33, s. 58. Warranties to issuer 63. (1) A person who presents a security for registration of transfer or for payment or exchange warrants to the issuer that the person is entitled to the registration, payment or exchange, except that a purchaser for value without notice of an adverse claim who receives a new, reissued or re-registered security on registration of transfer warrants only that the purchaser has no knowledge of any unauthorized signature in a necessary endorsement. Warranties to purchaser (2) A person by transferring a security to a purchaser for value warrants only that (a) the transfer is effective and rightful; (b) the security is genuine and has not been materially altered; and (c) the person knows of nothing that might impair the validity of the security. Warranties of intermediary (3) Where a security is delivered by an intermediary known by the purchaser to be entrusted with delivery of the security on behalf of another or with collection of a draft or other claim to be collected against such delivery, the intermediary by such delivery warrants only the intermediary’s good faith and authority even if the intermediary has purchased or made advances against the draft or other claim to be collected against the delivery. Warranties of pledgee (4) A pledgee or other holder for purposes of security who redelivers a security received, or after payment and on order of the debtor delivers that security to a third person, gives only the warranties of an intermediary under subsection (3). Warranties of broker (5) A broker gives to a customer, to the issuer and to a purchaser, as the case may be, the warranties provided in this section and has the rights and privileges of a purchaser under this section, and those warranties of and in favour of the broker acting as an agent are in addition to warranties given by the customer and warranties given in favour of the customer. R.S., 1985, c. C-44, s. 63; 2001, c. 14, s. 135(E). Right to compel endorsement 64. When a security in registered form is delivered to a purchaser without a necessary endorsement, the purchaser may become a bona fide purchaser only as of the time the endorsement is supplied, but against the transferor the transfer is complete on delivery and the purchaser has a specifically enforceable right to have any necessary endorsement supplied. R.S., 1985, c. C-44, s. 64; 2001, c. 14, s. 135(E). Definition of "appropriate person" 65. (1) In this section, "appropriate person" means (a) the person specified by the security or by special endorsement to be entitled to the security; (b) if a person described in paragraph (a) is described as a fiduciary but is no longer serving in the described capacity, either that person or the person’s successor; (c) if the security or endorsement mentioned in paragraph (a) specifies more than one person as fiduciaries and one or more are no longer serving in the described capacity, the remaining fiduciary or fiduciaries, whether or not a successor has been appointed or qualified; (d) if a person described in paragraph (a) is an individual and is without capacity to act by reason of death, incompetence, minority, or other incapacity, the person’s fiduciary; (e) if the security or endorsement mentioned in paragraph (a) specifies more than one person with right of survivorship and by reason of death all cannot sign, the survivor or survivors; (f) a person having power to sign under applicable law or a power of attorney; or (g) to the extent that a person described in paragraphs (a) to (f) may act through an agent, the authorized agent. Determining "appropriate person" (2) Whether the person signing is an appropriate person is determined as of the time of signing and an endorsement by such a person does not become unauthorized for the purposes of this Part by reason of any subsequent change of circumstances. Endorsement (3) An endorsement of a security in registered form is made when an appropriate person signs, either on the security or on a separate document, an assignment or transfer of the security or a power to assign or transfer it, or when the signature of an appropriate person is written without more on the back of the security. Special or blank (4) An endorsement may be special or in blank. Blank endorsement (5) An endorsement in blank includes an endorsement to bearer. Special endorsement (6) A special endorsement specifies the person to whom the security is to be transferred, or who has power to transfer it. Right of holder (7) A holder may convert an endorsement in blank into a special endorsement. Immunity of endorser (8) Unless otherwise agreed, the endorser assumes no obligation that the security will be honoured by the issuer. Partial endorsement (9) An endorsement purporting to be only of part of a security representing units intended by the issuer to be separately transferable is effective to the extent of the endorsement. Failure of fiduciary to comply (10) Failure of a fiduciary to comply with a controlling instrument or with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of a transfer, does not render the fiduciary’s endorsement unauthorized for the purposes of this Part. R.S., 1985, c. C-44, s. 65; 2001, c. 14, ss. 32(E), 135(E). Effect of endorsement without delivery 66. An endorsement of a security whether special or in blank does not constitute a transfer until delivery of the security on which it appears or, if the endorsement is on a separate document, until delivery of both the security and that document. 1974-75-76, c. 33, s. 62. Endorsement in bearer form 67. An endorsement of a security in bearer form may give notice of an adverse claim under section 61 but does not otherwise affect any right to registration that the holder has. 1974-75-76, c. 33, s. 63. Effect of unauthorized endorsement 68. (1) The owner of a security may assert the ineffectiveness of an endorsement against the issuer or any purchaser, other than a purchaser for value without notice of an adverse claim who has in good faith received a new, reissued or re-registered security on registration of transfer, unless the owner (a) has ratified an unauthorized endorsement of the security; or (b) is otherwise precluded from impugning the effectiveness of an unauthorized endorsement. Liability of issuer (2) An issuer who registers the transfer of a security on an unauthorized endorsement is liable for improper registration. 1974-75-76, c. 33, s. 64. Warranties of guarantor of signature 69. (1) A person who guarantees a signature of an endorser of a security warrants that at the time of signing (a) the signature was genuine; (b) the signer was an appropriate person as defined in section 65 to endorse; and (c) the signer had legal capacity to sign. Limitation of liability (2) A person who guarantees a signature of an endorser does not otherwise warrant the rightfulness of the particular transfer. Warranties of guarantor of endorsement (3) A person who guarantees an endorsement of a security warrants both the signature and the rightfulness of the transfer in all respects, but an issuer may not require a guarantee of endorsement as a condition to registration of transfer. Extent of liability (4) The warranties referred to in this section are made to any person taking or dealing with the security relying on the guarantee and the guarantor is liable to such person for any loss resulting from breach of warranty. 1974-75-76, c. 33, s. 65. Constructive delivery of a security 70. (1) Delivery to a purchaser occurs when (a) the purchaser or a person designated by the purchaser acquires possession of a security; (b) the broker of the purchaser acquires possession of a security specially endorsed to or issued in the name of the purchaser; (c) the broker of the purchaser sends the purchaser confirmation of the purchase and identifies in a record a specific security as belonging to the purchaser; or (d) with respect to an identified security to be delivered while still in the possession of a third person, that person acknowledges holding it for the purchaser. Constructive ownership (2) A purchaser is the owner of a security that a broker holds for the purchaser, but is not a holder except in the cases referred to in paragraphs (1)(b) and (c). Ownership of part of fungible bulk (3) If a security is part of a fungible bulk, a purchaser of the security is the owner of a proportionate interest in the fungible bulk. Notice to broker (4) Notice of an adverse claim received by a broker or by a purchaser after the broker takes delivery as a holder for value is not effective against the broker or the purchaser, except that, as between the broker and the purchaser, the purchaser may demand delivery of an equivalent security as to which no notice of an adverse claim has been received. R.S., 1985, c. C-44, s. 70; 2001, c. 14, s. 135(E). Delivery of security 71. (1) Unless otherwise agreed, if a sale of a security is made on an exchange or otherwise through brokers, (a) the selling customer fulfils their duty to deliver by delivering the security to the selling broker or to a person designated by the selling broker or by causing an acknowledgment to be made to the selling broker that it is held for the selling broker; and (b) the selling broker, including a correspondent broker, acting for a selling customer fulfils their duty to deliver by delivering the security or a like security to the buying broker or to a person designated by the buying broker or by effecting clearance of the sale in accordance with the rules of the exchange on which the transaction took place. Duty to deliver (2) Subject to this section and unless otherwise agreed, a transferor’s duty to deliver a security under a contract of purchase is not fulfilled until the transferor delivers the security in negotiable form to the purchaser or to a person designated by the purchaser, or causes an acknowledgment to be made to the purchaser that the security is held for the purchaser. Delivery to broker (3) A sale to a broker purchasing for the broker’s own account is subject to subsection (2) and not subsection (1), unless the sale is made on a stock exchange. R.S., 1985, c. C-44, s. 71; 2001, c. 14, s. 135(E). Right to reclaim possession 72. (1) A person against whom the transfer of a security is wrongful for any reason, including incapacity, may against anyone except a bona fide purchaser reclaim possession of the security or obtain possession of any new security evidencing all or part of the same rights or claim damages. Recovery if unauthorized endorsement (2) If the transfer of a security is wrongful by reason of an unauthorized endorsement, the owner may reclaim possession of the security or a new security even from a bona fide purchaser if the ineffectiveness of the purported endorsement may be asserted against such purchaser under section 68. Remedies (3) The right to reclaim possession of a security may be specifically enforced, its transfer may be restrained and the security may be impounded pending litigation. R.S., 1985, c. C-44, s. 72; 2001, c. 14, s. 135(E). Right to requisites for registration 73. (1) Unless otherwise agreed, a transferor shall on demand supply a purchaser with proof of authority to transfer or with any other requisite that is necessary to obtain registration of the transfer of a security, but if the transfer is not for value a transferor need not do so unless the purchaser pays the reasonable and necessary costs of the proof and transfer. Rescission of transfer (2) If the transferor fails to comply with a demand under subsection (1) within a reasonable time, the purchaser may reject or rescind the transfer. R.S., 1985, c. C-44, s. 73; 2001, c. 14, s. 135(E). Seizure of security 74. No seizure of a security or other interest evidenced thereby is effective until the person making the seizure obtains possession of the security. 1974-75-76, c. 33, s. 70. No conversion if good faith delivery by agent 75. An agent or bailee who in good faith, including observance of reasonable commercial standards if the agent or bailee is in the business of buying, selling or otherwise dealing with securities of a corporation, has received securities and sold, pledged or delivered them according to the instructions of their principal is not liable for conversion or for participation in breach of fiduciary duty although the principal has no right to dispose of them. R.S., 1985, c. C-44, s. 75; 2001, c. 14, ss. 33(F), 135(E). Registration Duty to register transfer 76. (1) Where a security in registered form is presented for transfer, the issuer shall register the transfer if (a) the security is endorsed by an appropriate person as defined in section 65; (b) reasonable assurance is given that that endorsement is genuine and effective; (c) the issuer has no duty to inquire into adverse claims or has discharged any such duty; (d) any applicable law relating to the collection of taxes has been complied with; (e) the transfer is rightful or is to a bona fide purchaser; and (f) any fee referred to in subsection 49(2) has been paid. Liability for delay (2) Where an issuer has a duty to register a transfer of a security, the issuer is liable to the person presenting it for registration for loss resulting from any unreasonable delay in registration or from failure or refusal to register the transfer. 1974-75-76, c. 33, s. 71. Assurance that endorsement effective 77. (1) An issuer may require an assurance that each necessary endorsement on a security is genuine and effective by requiring a guarantee of the signature of the person endorsing, and by requiring (a) if the endorsement is by an agent, reasonable assurance of authority to sign; (b) if the endorsement is by a fiduciary, evidence of appointment or incumbency; (c) if there is more than one fiduciary, reasonable assurance that all who are required to sign have done so; and (d) in any other case, assurance that corresponds as closely as practicable to the foregoing. Definition of "guarantee of the signature" (2) For the purposes of subsection (1), a "guarantee of the signature" means a guarantee signed by or on behalf of a person reasonably believed by the issuer to be responsible. Standards (3) An issuer may adopt reasonable standards to determine responsible persons for the purpose of subsection (2). Definition of "evidence of appointment or incumbency" (4) In paragraph (1)(b), "evidence of appointment or incumbency" means (a) in the case of a fiduciary appointed by a court, a copy of the order certified in accordance with subsection 51(7), and dated not earlier than sixty days before the date a security is presented for transfer; or (b) in any other case, a copy of a document showing the appointment or other evidence believed by the issuer to be appropriate. Standards (5) An issuer may adopt reasonable standards with respect to evidence for the purposes of paragraph (4)(b). No notice to issuer (6) An issuer is deemed not to have notice of the contents of any document referred to in subsection (4) except to the extent that the contents relate directly to appointment or incumbency. Notice from excess documentation (7) If an issuer demands assurance additional to that specified in this section for a purpose other than that specified in subsection (4) and obtains a copy of a will, trust or partnership agreement, by-law or similar document, the issuer is deemed to have notice of all matters contained therein affecting the transfer. 1974-75-76, c. 33, s. 72. Limited duty of inquiry 78. (1) An issuer to whom a security is presented for registration has a duty to inquire into adverse claims if (a) written notice of an adverse claim has been received at a time and in a manner that affords the issuer a reasonable opportunity to act on it before the issue of a new, reissued or re-registered security and the notice discloses the name and address of the claimant, the registered owner and the issue of which the security is a part; or (b) the issuer is deemed to have notice of an adverse claim from a document that it obtained under subsection 77(7). Discharge of duty (2) An issuer may discharge a duty of inquiry by any reasonable means, including notifying an adverse claimant by registered mail sent to the address furnished by the claimant or, if no such address has been furnished, to the claimant’s residence or regular place of business, that a security has been presented for registration of transfer by a named person, and that the transfer will be registered unless within thirty days from the date of mailing the notice either (a) the issuer is served with a restraining order or other order of a court; or (b) the issuer is provided with an indemnity bond sufficient in the issuer’s judgment to protect the issuer and any registrar, transfer agent or other agent of the issuer from any loss that may be incurred by any of them as a result of complying with the adverse claim. Inquiry into adverse claims (3) Unless an issuer is deemed to have notice of an adverse claim from a document that it obtained under subsection 77(7) or has received notice of an adverse claim under subsection (1), if a security presented for registration is endorsed by the appropriate person as defined in section 65, the issuer has no duty to inquire into adverse claims, and in particular, (a) an issuer registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent or correct description of the fiduciary relationship and thereafter the issuer may assume without inquiry that the newly registered owner continues to be the fiduciary until the issuer receives written notice that the fiduciary is no longer acting as such with respect to the particular security; (b) an issuer registering transfer on an endorsement by a fiduciary has no duty to inquire whether the transfer is made in compliance with the document or with the law of the jurisdiction governing the fiduciary relationship; and (c) an issuer is deemed not to have notice of the contents of any court record or any registered document even if the record or document is in the issuer’s possession and even if the transfer is made on the endorsement of a fiduciary to the fiduciary or the fiduciary’s nominee. Duration of notice (4) A written notice of adverse claim received by an issuer is effective for twelve months from the date when it was received unless the notice is renewed in writing. R.S., 1985, c. C-44, s. 78; 2001, c. 14, s. 135(E). Limitation of issuer’s liability 79. (1) Subject to any applicable law relating to the collection of taxes, the issuer is not liable to the owner or any other person who incurs a loss as a result of the registration of a transfer of a security if (a) the necessary endorsements were on or with the security; and (b) the issuer had no duty to inquire into adverse claims or had discharged any such duty. Duty of issuer in default (2) If an issuer has registered a transfer of a security to a person not entitled to it, the issuer shall on demand deliver a like security to the owner unless (a) subsection (1) applies; (b) the owner is precluded by subsection 80(1) from asserting any claim; or (c) the delivery would result in overissue, in which case the issuer’s liability is governed by section 52. 1974-75-76, c. 33, s. 74. Notice of lost or stolen security 80. (1) Where a security has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the issuer of that fact by giving the issuer written notice of an adverse claim within a reasonable time after discovering the loss, destruction or taking and if the issuer has registered a transfer of the security before receiving such notice, the owner is precluded from asserting against the issuer any claim to a new security. Duty of issuer to issue a new security (2) Where the owner of a security claims that the security has been lost, destroyed or wrongfully taken, the issuer shall issue a new security in place of the original security if the owner (a) so requests before the issuer has notice that the security has been acquired by a bona fide purchaser; (b) furnishes the issuer with a sufficient indemnity bond; and (c) satisfies any other reasonable requirements imposed by the issuer. Duty to register transfer (3) If, after the issue of a new security under subsection (2), a bona fide purchaser of the original security presents the original security for registration of transfer, the issuer shall register the transfer unless registration would result in overissue, in which case the issuer’s liability is governed by section 52. Right of issuer to recover (4) In addition to any rights on an indemnity bond, the issuer may recover a new security issued under subsection (2) from the person to whom it was issued or anyone taking under the person other than a bona fide purchaser. R.S., 1985, c. C-44, s. 80; 2001, c. 14, s. 135(E). Agent’s duties, rights, etc. 81. (1) An authenticating trustee, registrar, transfer agent or other agent of an issuer has, in respect of the issue, registration of transfer and cancellation of a security of the issuer, (a) a duty to the issuer to exercise good faith and reasonable diligence; and (b) the same obligations to the holder or owner of a security and the same rights, privileges and immunities as the issuer. Notice to agent (2) Notice to an authenticating trustee, registrar, transfer agent or other agent of an issuer is notice to the issuer with respect to the functions performed by the agent. 1974-75-76, c. 33, s. 76. PART VIII TRUST INDENTURES Definitions 82. (1) In this Part, "event of default" «cas de défaut » "event of default" means an event specified in a trust indenture on the occurrence of which (a) a security interest constituted by the trust indenture becomes enforceable, or (b) the principal, interest and other moneys payable thereunder become or may be declared to be payable before maturity, but the event is not an event of default until all conditions prescribed by the trust indenture in connection with such event for the giving of notice or the lapse of time or otherwise have been satisfied; "trustee" «fiduciaire » "trustee" means any person appointed as trustee under the terms of a trust indenture to which a corporation is a party and includes any successor trustee; "trust indenture" «acte de fiducie » "trust indenture" means any deed, indenture or other instrument, including any supplement or amendment thereto, made by a corporation after its incorporation or continuance under this Act, under which the corporation issues debt obligations and in which a person is appointed as trustee for the holders of the debt obligations issued thereunder. Application (2) This Part applies to a trust indenture if the debt obligations issued or to be issued under the trust indenture are part of a distribution to the public. Exemption (3) The Director may exempt a trust indenture from this Part if the trust indenture, the debt obligations issued thereunder and the security interest effected thereby are subject to a law of a province or a country other than Canada that is substantially equivalent to this Part. R.S., 1985, c. C-44, s. 82; 2001, c. 14, s. 34(F). Conflict of interest 83. (1) No person shall be appointed as trustee if there is a material conflict of interest between their role as trustee and their role in any other capacity. Eliminating conflict of interest (2) A trustee shall, within ninety days after becoming aware that a material conflict of interest exists (a) eliminate such conflict of interest; or (b) resign from office. Validity (3) A trust indenture, any debt obligations issued thereunder and a security interest effected thereby are valid notwithstanding a material conflict of interest of the trustee. Removal of trustee (4) If a trustee contravenes subsection (1) or (2), any interested person may apply to a court for an order that the trustee be replaced, and the court may make an order on such terms as it thinks fit. R.S., 1985, c. C-44, s. 83; 2001, c. 14, s. 135(E). Qualification of trustee 84. A trustee, or at least one of the trustees if more than one is appointed, shall be a body corporate incorporated under the laws of Canada or a province and authorized to carry on the business of a trust company. 1974-75-76, c. 33, s. 79. List of security holders 85. (1) A holder of debt obligations issued under a trust indenture may, on payment to the trustee of a reasonable fee, require the trustee to furnish, within fifteen days after delivering to the trustee the statutory declaration referred to in subsection (4), a list setting out (a) the names and addresses of the registered holders of the outstanding debt obligations, (b) the principal amount of outstanding debt obligations owned by each such holder, and (c) the aggregate principal amount of debt obligations outstanding as shown on the records maintained by the trustee on the day that the statutory declaration is delivered to that trustee. Duty of issuer (2) On the demand of a trustee, the issuer of debt obligations shall furnish the trustee with the information required to enable the trustee to comply with subsection (1). Corporate applicant (3) If the person requiring the trustee to furnish a list under subsection (1) is a body corporate, the statutory declaration required under that subsection shall be made by a director or officer of the body corporate. Contents of statutory declaration (4) The statutory declaration required under subsection (1) shall state (a) the name and address of the person requiring the trustee to furnish the list and, if the person is a body corporate, the address for service thereof; and (b) that the list will not be used except as permitted under subsection (5). Use of list (5) A list obtained under this section shall not be used by any person except in connection with (a) an effort to influence the voting of the holders of debt obligations; (b) an offer to acquire debt obligations; or (c) any other matter relating to the debt obligations or the affairs of the issuer or guarantor thereof. Offence (6) A person who, without reasonable cause, contravenes subsection (5) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. 1974-75-76, c. 33, s. 80. Evidence of compliance 86. (1) An issuer or a guarantor of debt obligations issued or to be issued under a trust indenture shall, before doing any act under paragraph (a), (b) or (c), furnish the trustee with evidence of compliance with the conditions in the trust indenture relating to (a) the issue, certification and delivery of debt obligations under the trust indenture; (b) the release or release and substitution of property subject to a security interest constituted by the trust indenture; or (c) the satisfaction and discharge of the trust indenture. Duty of issuer or guarantor (2) On the demand of a trustee, the issuer or guarantor of debt obligations issued or to be issued under a trust indenture shall furnish the trustee with evidence of compliance with the trust indenture by the issuer or guarantor in respect of any act to be done by the trustee at the request of the issuer or guarantor. 1974-75-76, c. 33, s. 81. Contents of declaration, etc. 87. Evidence of compliance as required by section 86 shall consist of (a) a statutory declaration or certificate made by a director or an officer of the issuer or guarantor stating that the conditions referred to in that section have been complied with; and (b) where the trust indenture requires compliance with conditions that are subject to review (i) by legal counsel, an opinion of legal counsel that such conditions have been complied with, and (ii) by an auditor or accountant, an opinion or report of the auditor of the issuer or guarantor, or such other accountant as the trustee may select, that such conditions have been complied with. 1974-75-76, c. 33, s. 82. Further evidence of compliance 88. The evidence of compliance referred to in section 87 shall include a statement by the person giving the evidence (a) declaring that they have read and understand the conditions of the trust indenture described in section 86; (b) describing the nature and scope of the examination or investigation on which the certificate, statement or opinion is based; and (c) declaring that they have made the examination or investigation that they believe necessary to enable them to make their statements or give their opinions. R.S., 1985, c. C-44, s. 88; 2001, c. 14, s. 135(E). Trustee may require evidence of compliance 89. (1) On the demand of a trustee, the issuer or guarantor of debt obligations issued under a trust indenture shall furnish the trustee with evidence in such form as the trustee may require as to compliance with any condition thereto relating to any action required or permitted to be taken by the issuer or guarantor under the trust indenture. Certificate of compliance (2) At least once in each twelve month period beginning on the date of the trust indenture and at any other time on the demand of a trustee, the issuer or guarantor of debt obligations issued under a trust indenture shall furnish the trustee with a certificate that the issuer or guarantor has complied with all requirements contained in the trust indenture that, if not complied with, would, with the giving of notice, lapse of time or otherwise, constitute an event of default, or, if there has been failure to so comply, giving particulars thereof. 1974-75-76, c. 33, s. 84. Notice of default 90. The trustee shall give to the holders of debt obligations issued under a trust indenture, within thirty days after the trustee becomes aware of the occurrence thereof, notice of every event of default arising under the trust indenture and continuing at the time the notice is given, unless the trustee reasonably believes that it is in the best interests of the holders of the debt obligations to withhold such notice and so informs the issuer and guarantor in writing. 1974-75-76, c. 33, s. 85. Duty of care 91. A trustee in exercising their powers and discharging their duties shall (a) act honestly and in good faith with a view to the best interests of the holders of the debt obligations issued under the trust indenture; and (b) exercise the care, diligence and skill of a reasonably prudent trustee. R.S., 1985, c. C-44, s. 91; 2001, c. 14, s. 135(E). Reliance on statements 92. Notwithstanding section 91, a trustee is not liable if they rely in good faith on statements contained in a statutory declaration, certificate, opinion or report that complies with this Act or the trust indenture. R.S., 1985, c. C-44, s. 92; 2001, c. 14, s. 135(E). No exculpation 93. No term of a trust indenture or of any agreement between a trustee and the holders of debt obligations issued thereunder or between the trustee and the issuer or guarantor shall operate so as to relieve a trustee from the duties imposed on the trustee by section 91. R.S., 1985, c. C-44, s. 93; 2001, c. 14, s. 135(E). PART IX RECEIVERS AND RECEIVER-MANAGERS Functions of receiver 94. A receiver of any property of a corporation may, subject to the rights of secured creditors, receive the income from the property and pay the liabilities connected with the property and realize the security interest of those on behalf of whom the receiver is appointed, but, except to the extent permitted by a court, the receiver may not carry on the business of the corporation. R.S., 1985, c. C-44, s. 94; 2001, c. 14, s. 135(E). Functions of receiver-manager 95. A receiver of a corporation who is also appointed receiver-manager of the corporation may carry on any business of the corporation to protect the security interest of those on behalf of whom the receiver is appointed. R.S., 1985, c. C-44, s. 95; 2001, c. 14, s. 135(E). Directors’ powers cease 96. If a receiver-manager is appointed by a court or under an instrument, the powers of the directors of the corporation that the receiver-manager is authorized to exercise may not be exercised by the directors until the receiver-manager is discharged. 1974-75-76, c. 33, s. 91. Duty to act 97. A receiver or receiver-manager appointed by a court shall act in accordance with the directions of the court. 1974-75-76, c. 33, s. 92. Duty under instrument 98. A receiver or receiver-manager appointed under an instrument shall act in accordance with that instrument and any direction of a court made under section 100. 1974-75-76, c. 33, s. 93. Duty of care 99. A receiver or receiver-manager of a corporation appointed under an instrument shall (a) act honestly and in good faith; and (b) deal with any property of the corporation in their possession or control in a commercially reasonable manner. R.S., 1985, c. C-44, s. 99; 2001, c. 14, s. 135(E). Directions given by court 100. On an application by a receiver or receiver-manager, whether appointed by a court or under an instrument, or on an application by any interested person, a court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order appointing, replacing or discharging a receiver or receiver-manager and approving their accounts; (b) an order determining the notice to be given to any person or dispensing with notice to any person; (c) an order fixing the remuneration of the receiver or receiver-manager; (d) an order requiring the receiver or receiver-manager, or a person by or on behalf of whom the receiver or receiver-manager is appointed, to make good any default in connection with the receiver’s or receiver-manager’s custody or management of the property and business of the corporation, or to relieve any such person from any default on such terms as the court thinks fit, and to confirm any act of the receiver or receiver-manager; and (e) an order giving directions on any matter relating to the duties of the receiver or receiver-manager. R.S., 1985, c. C-44, s. 100; 2001, c. 14, s. 135(E). Duties of receiver and receiver-manager 101. A receiver or receiver-manager shall (a) immediately notify the Director of their appointment and discharge; (b) take into their custody and control the property of the corporation in accordance with the court order or instrument under which they are appointed; (c) open and maintain a bank account in their name as receiver or receiver-manager of the corporation for the moneys of the corporation coming under their control; (d) keep detailed accounts of all transactions carried out as receiver or receiver-manager; (e) keep accounts of their administration that shall be available during usual business hours for inspection by the directors of the corporation; (f) prepare at least once in every six month period after the date of their appointment financial statements of their administration as far as is practicable in the form required by section 155; and (g) on completion of their duties, render a final account of their administration in the form adopted for interim accounts under paragraph (f). R.S., 1985, c. C-44, s. 101; 2001, c. 14, s. 135(E). PART X DIRECTORS AND OFFICERS Duty to manage or supervise management 102. (1) Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation. Number of directors (2) A corporation shall have one or more directors but a distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall have not fewer than three directors, at least two of whom are not officers or employees of the corporation or its affiliates. R.S., 1985, c. C-44, s. 102; 2001, c. 14, s. 35. By-laws 103. (1) Unless the articles, by-laws or a unanimous shareholder agreement otherwise provide, the directors may, by resolution, make, amend or repeal any by-laws that regulate the business or affairs of the corporation. Shareholder approval (2) The directors shall submit a by-law, or an amendment or a repeal of a by-law, made under subsection (1) to the shareholders at the next meeting of shareholders, and the shareholders may, by ordinary resolution, confirm, reject or amend the by-law, amendment or repeal. Effective date (3) A by-law, or an amendment or a repeal of a by-law, is effective from the date of the resolution of the directors under subsection (1) until it is confirmed, confirmed as amended or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed or confirmed as amended, it continues in effect in the form in which it was so confirmed. Idem (4) If a by-law, an amendment or a repeal is rejected by the shareholders, or if the directors do not submit a by-law, an amendment or a repeal to the shareholders as required under subsection (2), the by-law, amendment or repeal ceases to be effective and no subsequent resolution of the directors to make, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed or confirmed as amended by the shareholders. Shareholder proposal (5) A shareholder entitled to vote at an annual meeting of shareholders may, in accordance with section 137, make a proposal to make, amend or repeal a by-law. R.S., 1985, c. C-44, s. 103; 2001, c. 14, s. 36(F). Organization meeting 104. (1) After issue of the certificate of incorporation, a meeting of the directors of the corporation shall be held at which the directors may (a) make by-laws; (b) adopt forms of security certificates and corporate records; (c) authorize the issue of securities; (d) appoint officers; (e) appoint an auditor to hold office until the first annual meeting of shareholders; (f) make banking arrangements; and (g) transact any other business. Exception (2) Subsection (1) does not apply to a body corporate to which a certificate of amalgamation has been issued under subsection 185(4) or to which a certificate of continuance has been issued under subsection 187(4). Calling meeting (3) An incorporator or a director may call the meeting of directors referred to in subsection (1) by giving not less than five days notice thereof by mail to each director, stating the time and place of the meeting. 1974-75-76, c. 33, s. 99; 1978-79, c. 9, s. 28. Qualifications of directors 105. (1) The following persons are disqualified from being a director of a corporation: (a) anyone who is less than eighteen years of age; (b) anyone who is of unsound mind and has been so found by a court in Canada or elsewhere; (c) a person who is not an individual; or (d) a person who has the status of bankrupt. Further qualifications (2) Unless the articles otherwise provide, a director of a corporation is not required to hold shares issued by the corporation. Residency (3) Subject to subsection (3.1), at least twenty-five per cent of the directors of a corporation must be resident Canadians. However, if a corporation has less than four directors, at least one director must be a resident Canadian. Exception — Canadian ownership or control (3.1) If a corporation engages in an activity in Canada in a prescribed business sector or if a corporation, by an Act of Parliament or by a regulation made under an Act of Parliament, is required, either individually or in order to engage in an activity in Canada in a particular business sector, to attain or maintain a specified level of Canadian ownership or control, or to restrict, or to comply with a restriction in relation to, the number of voting shares that any one shareholder may hold, own or control, then a majority of the directors of the corporation must be resident Canadians. Clarification (3.2) Nothing in subsection (3.1) shall be construed as reducing any requirement for a specified number or percentage of resident Canadian directors that otherwise applies to a corporation referred to in that subsection. If only one or two directors (3.3) If a corporation referred to in subsection (3.1) has only one or two directors, that director or one of the two directors, as the case may be, must be a resident Canadian. Exception for holding corporation (4) Despite subsection (3.1), not more than one third of the directors of a holding corporation referred to in that subsection need be resident Canadians if the holding corporation earns in Canada directly or through its subsidiaries less than five per cent of the gross revenues of the holding corporation and all of its subsidiary bodies corporate together as shown in (a) the most recent consolidated financial statements of the holding corporation referred to in section 157; or (b) the most recent financial statements of the holding corporation and its subsidiary bodies corporate as at the end of the last completed financial year of the holding corporation. R.S., 1985, c. C-44, s. 105; 2001, c. 14, s. 37. Notice of directors 106. (1) At the time of sending articles of incorporation, the incorporators shall send to the Director a notice of directors in the form that the Director fixes, and the Director shall file the notice. Term of office (2) Each director named in the notice referred to in subsection (1) holds office from the issue of the certificate of incorporation until the first meeting of shareholders. Election of directors (3) Subject to paragraph 107(b), shareholders of a corporation shall, by ordinary resolution at the first meeting of shareholders and at each succeeding annual meeting at which an election of directors is required, elect directors to hold office for a term expiring not later than the close of the third annual meeting of shareholders following the election. Staggered terms (4) It is not necessary that all directors elected at a meeting of shareholders hold office for the same term. No stated terms (5) A director not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of shareholders following the director’s election. Incumbent directors (6) Notwithstanding subsections (2), (3) and (5), if directors are not elected at a meeting of shareholders the incumbent directors continue in office until their successors are elected. Vacancy among candidates (7) If a meeting of shareholders fails to elect the number or the minimum number of directors required by the articles by reason of the lack of consent, disqualification, incapacity or death of any candidates, the directors elected at that meeting may exercise all the powers of the directors if the number of directors so elected constitutes a quorum. Appointment of directors (8) The directors may, if the articles of the corporation so provide, appoint one or more additional directors, who shall hold office for a term expiring not later than the close of the next annual meeting of shareholders, but the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders. Election or appointment as director (9) An individual who is elected or appointed to hold office as a director is not a director and is deemed not to have been elected or appointed to hold office as a director unless (a) he or she was present at the meeting when the election or appointment took place and he or she did not refuse to hold office as a director; or (b) he or she was not present at the meeting when the election or appointment took place and (i) he or she consented to hold office as a director in writing before the election or appointment or within ten days after it, or (ii) he or she has acted as a director pursuant to the election or appointment. R.S., 1985, c. C-44, s. 106; 1994, c. 24, s. 11; 2001, c. 14, ss. 38, 135(E). Cumulative voting 107. Where the articles provide for cumulative voting, (a) the articles shall require a fixed number and not a minimum and maximum number of directors; (b) each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by the shareholder multiplied by the number of directors to be elected, and may cast all of those votes in favour of one candidate or distribute them among the candidates in any manner; (c) a separate vote of shareholders shall be taken with respect to each candidate nominated for director unless a resolution is passed unanimously permitting two or more persons to be elected by a single resolution; (d) if a shareholder has voted for more than one candidate without specifying the distribution of votes, the shareholder is deemed to have distributed the votes equally among those candidates; (e) if the number of candidates nominated for director exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled; (f) each director ceases to hold office at the close of the first annual meeting of shareholders following the director’s election; (g) a director may be removed from office only if the number of votes cast in favour of the director’s removal is greater than the product of the number of directors required by the articles and the number of votes cast against the motion; and (h) the number of directors required by the articles may be decreased only if the votes cast in favour of the motion to decrease the number of directors is greater than the product of the number of directors required by the articles and the number of votes cast against the motion. R.S., 1985, c. C-44, s. 107; 2001, c. 14, ss. 39(E), 135(E). Ceasing to hold office 108. (1) A director of a corporation ceases to hold office when the director (a) dies or resigns; (b) is removed in accordance with section 109; or (c) becomes disqualified under subsection 105(1). Effective date of resignation (2) A resignation of a director becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later. R.S., 1985, c. C-44, s. 108; 2001, c. 14, s. 135(E). Removal of directors 109. (1) Subject to paragraph 107(g), the shareholders of a corporation may by ordinary resolution at a special meeting remove any director or directors from office. Exception (2) Where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors, a director so elected may only be removed by an ordinary resolution at a meeting of the shareholders of that class or series. Vacancy (3) Subject to paragraphs 107(b) to (e), a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed or, if not so filled, may be filled under section 111. Resignation (or removal) (4) If all of the directors have resigned or have been removed without replacement, a person who manages or supervises the management of the business and affairs of the corporation is deemed to be a director for the purposes of this Act. Exception (5) Subsection (4) does not apply to (a) an officer who manages the business or affairs of the corporation under the direction or control of a shareholder or other person; (b) a lawyer, notary, accountant or other professional who participates in the management of the corporation solely for the purpose of providing professional services; or (c) a trustee in bankruptcy, receiver, receiver-manager or secured creditor who participates in the management of the corporation or exercises control over its property solely for the purpose of the realization of security or the administration of a bankrupt’s estate, in the case of a trustee in bankruptcy. R.S., 1985, c. C-44, s. 109; 2001, c. 14, s. 40. Attendance at meeting 110. (1) A director of a corporation is entitled to receive notice of and to attend and be heard at every meeting of shareholders. Statement of director (2) A director who (a) resigns, (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the director from office, or (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed or elected to fill the office of director, whether because of the director’s resignation or removal or because the director’s term of office has expired or is about to expire, is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing any proposed action or resolution. Circulating statement (3) A corporation shall forthwith send a copy of the statement referred to in subsection (2) to every shareholder entitled to receive notice of any meeting referred to in subsection (1) and to the Director unless the statement is included in or attached to a management proxy circular required by section 150. Immunity (4) No corporation or person acting on its behalf incurs any liability by reason only of circulating a director’s statement in compliance with subsection (3). R.S., 1985, c. C-44, s. 110; 2001, c. 14, s. 135(E). Filling vacancy 111. (1) Despite subsection 114(3), but subject to subsections (3) and (4), a quorum of directors may fill a vacancy among the directors, except a vacancy resulting from an increase in the number or the minimum or maximum number of directors or a failure to elect the number or minimum number of directors provided for in the articles. Calling meeting (2) If there is not a quorum of directors or if there has been a failure to elect the number or minimum number of directors provided for in the articles, the directors then in office shall without delay call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any shareholder. Class director (3) If the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors and a vacancy occurs among those directors, (a) subject to subsection (4), the remaining directors elected by the holders of that class or series of shares may fill the vacancy except a vacancy resulting from an increase in the number or the minimum or maximum number of directors for that class or series or from a failure to elect the number or minimum number of directors provided for in the articles for that class or series; or (b) if there are no remaining directors any holder of shares of that class or series may call a meeting of the holders of shares of that class or series for the purpose of filling the vacancy. Shareholders filling vacancy (4) The articles may provide that a vacancy among the directors shall only be filled by a vote of the shareholders, or by a vote of the holders of any class or series of shares having an exclusive right to elect one or more directors if the vacancy occurs among the directors elected by that class or series. Unexpired term (5) A director appointed or elected to fill a vacancy holds office for the unexpired term of their predecessor. R.S., 1985, c. C-44, s. 111; 2001, c. 14, ss. 41, 135(E). Number of directors 112. (1) The shareholders of a corporation may amend the articles to increase or, subject to paragraph 107(h), to decrease the number of directors, or the minimum or maximum number of directors, but no decrease shall shorten the term of an incumbent director. Election of directors where articles amended (2) Where the shareholders at a meeting adopt an amendment to the articles of a corporation to increase or, subject to paragraph 107(h) and to subsection (1), decrease the number or minimum or maximum number of directors, the shareholders may, at the meeting, elect the number of directors authorized by the amendment, and for that purpose, notwithstanding subsections 179(1) and 262(3), on the issue of a certificate of amendment the articles are deemed to be amended as of the date the shareholders adopt the amendment. R.S., 1985, c. C-44, s. 112; 1994, c. 24, s. 12. Notice of change of director or director’s address 113. (1) A corporation shall, within fifteen days after (a) a change is made among its directors, or (b) it receives a notice of change of address of a director referred to in subsection (1.1), send to the Director a notice, in the form that the Director fixes, setting out the change, and the Director shall file the notice. Director’s change of address (1.1) A director shall, within fifteen days after changing his or her address, send the corporation a notice of that change. Application to court (2) Any interested person, or the Director, may apply to a court for an order to require a corporation to comply with subsection (1), and the court may so order and make any further order it thinks fit. R.S., 1985, c. C-44, s. 113; 2001, c. 14, s. 42. Meeting of directors 114. (1) Unless the articles or by-laws otherwise provide, the directors may meet at any place and on such notice as the by-laws require. Quorum (2) Subject to the articles or by-laws, a majority of the number of directors or minimum number of directors required by the articles constitutes a quorum at any meeting of directors, and, notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors. Canadian directors present at meetings (3) Directors, other than directors of a corporation referred to in subsection 105(4), shall not transact business at a meeting of directors unless, (a) if the corporation is subject to subsection 105(3), at least twenty-five per cent of the directors present are resident Canadians or, if the corporation has less than four directors, at least one of the directors present is a resident Canadian; or (b) if the corporation is subject to subsection 105(3.1), a majority of directors present are resident Canadians or if the corporation has only two directors, at least one of the directors present is a resident Canadian. Exception (4) Despite subsection (3), directors may transact business at a meeting of directors where the number of resident Canadian directors, required under that subsection, is not present if (a) a resident Canadian director who is unable to be present approves in writing, or by telephonic, electronic or other communication facility, the business transacted at the meeting; and (b) the required number of resident Canadian directors would have been present had that director been present at the meeting. Notice of meeting (5) A notice of a meeting of directors shall specify any matter referred to in subsection 115(3) that is to be dealt with at the meeting but, unless the by-laws otherwise provide, need not specify the purpose of or the business to be transacted at the meeting. Waiver of notice (6) A director may in any manner waive a notice of a meeting of directors; and attendance of a director at a meeting of directors is a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. Adjournment (7) Notice of an adjourned meeting of directors is not required to be given if the time and place of the adjourned meeting is announced at the original meeting. One director meeting (8) Where a corporation has only one director, that director may constitute a meeting. Participation (9) Subject to the by-laws, a director may, in accordance with the regulations, if any, and if all the directors of the corporation consent, participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. A director participating in such a meeting by such means is deemed for the purposes of this Act to be present at that meeting. R.S., 1985, c. C-44, s. 114; 2001, c. 14, s. 43. Delegation 115. (1) Directors of a corporation may appoint from their number a managing director who is a resident Canadian or a committee of directors and delegate to such managing director or committee any of the powers of the directors. (2) [Repealed, 2001, c. 14, s. 44] Limits on authority (3) Notwithstanding subsection (1), no managing director and no committee of directors has authority to (a) submit to the shareholders any question or matter requiring the approval of the shareholders; (b) fill a vacancy among the directors or in the office of auditor, or appoint additional directors; (c) issue securities except as authorized by the directors; (c.1) issue shares of a series under section 27 except as authorized by the directors; (d) declare dividends; (e) purchase, redeem or otherwise acquire shares issued by the corporation; (f) pay a commission referred to in section 41 except as authorized by the directors; (g) approve a management proxy circular referred to in Part XIII; (h) approve a take-over bid circular or directors’ circular referred to in Part XVII; (i) approve any financial statements referred to in section 155; or (j) adopt, amend or repeal by-laws. R.S., 1985, c. C-44, s. 115; 2001, c. 14, s. 44. Validity of acts of directors and officers 116. An act of a director or officer is valid notwithstanding an irregularity in their election or appointment or a defect in their qualification. R.S., 1985, c. C-44, s. 116; 2001, c. 14, s. 135(E). Resolution in lieu of meeting 117. (1) A resolution in writing, signed by all the directors entitled to vote on that resolution at a meeting of directors or committee of directors, is as valid as if it had been passed at a meeting of directors or committee of directors. Filing resolution (2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors or committee of directors. Evidence (3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. R.S., 1985, c. C-44, s. 117; 2001, c. 14, s. 45. Directors’ liability 118. (1) Directors of a corporation who vote for or consent to a resolution authorizing the issue of a share under section 25 for a consideration other than money are jointly and severally, or solidarily, liable to the corporation to make good any amount by which the consideration received is less than the fair equivalent of the money that the corporation would have received if the share had been issued for money on the date of the resolution. Further directors’ liabilities (2) Directors of a corporation who vote for or consent to a resolution authorizing any of the following are jointly and severally, or solidarily, liable to restore to the corporation any amounts so distributed or paid and not otherwise recovered by the corporation: (a) a purchase, redemption or other acquisition of shares contrary to section 34, 35 or 36; (b) a commission contrary to section 41; (c) a payment of a dividend contrary to section 42; (d) a payment of an indemnity contrary to section 124; or (e) a payment to a shareholder contrary to section 190 or 241. Contribution (3) A director who has satisfied a judgment rendered under this section is entitled to contribution from the other directors who voted for or consented to the unlawful act on which the judgment was founded. Recovery (4) A director liable under subsection (2) is entitled to apply to a court for an order compelling a shareholder or other recipient to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 34, 35, 36, 41, 42, 124, 190 or 241. Order of court (5) In connection with an application under subsection (4) a court may, if it is satisfied that it is equitable to do so, (a) order a shareholder or other recipient to pay or deliver to a director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 34, 35, 36, 41, 42, 124, 190 or 241; (b) order a corporation to return or issue shares to a person from whom the corporation has purchased, redeemed or otherwise acquired shares; or (c) make any further order it thinks fit. No liability (6) A director who proves that the director did not know and could not reasonably have known that the share was issued for a consideration less than the fair equivalent of the money that the corporation would have received if the share had been issued for money is not liable under subsection (1). Limitation (7) An action to enforce a liability imposed by this section may not be commenced after two years from the date of the resolution authorizing the action complained of. R.S., 1985, c. C-44, s. 118; 2001, c. 14, ss. 46, 135(E). Liability of directors for wages 119. (1) Directors of a corporation are jointly and severally, or solidarily, liable to employees of the corporation for all debts not exceeding six months wages payable to each such employee for services performed for the corporation while they are such directors respectively. Conditions precedent to liability (2) A director is not liable under subsection (1) unless (a) the corporation has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part; (b) the corporation has commenced liquidation and dissolution proceedings or has been dissolved and a claim for the debt has been proved within six months after the earlier of the date of commencement of the liquidation and dissolution proceedings and the date of dissolution; or (c) the corporation has made an assignment or a bankruptcy order has been made against it under the Bankruptcy and Insolvency Act and a claim for the debt has been proved within six months after the date of the assignment or bankruptcy order. Limitation (3) A director, unless sued for a debt referred to in subsection (1) while a director or within two years after ceasing to be a director, is not liable under this section. Amount due after execution (4) Where execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution. Subrogation of director (5) Where a director pays a debt referred to in subsection (1) that is proved in liquidation and dissolution or bankruptcy proceedings, the director is entitled to any preference that the employee would have been entitled to, and where a judgment has been obtained, the director is entitled to an assignment of the judgment. Contribution (6) A director who has satisfied a claim under this section is entitled to contribution from the other directors who were liable for the claim. R.S., 1985, c. C-44, s. 119; 1992, c. 27, s. 90; 2001, c. 14, ss. 47, 135(E); 2004, c. 25, s. 187. Disclosure of interest 120. (1) A director or an officer of a corporation shall disclose to the corporation, in writing or by requesting to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of any interest that he or she has in a material contract or material transaction, whether made or proposed, with the corporation, if the director or officer (a) is a party to the contract or transaction; (b) is a director or an officer, or an individual acting in a similar capacity, of a party to the contract or transaction; or (c) has a material interest in a party to the contract or transaction. Time of disclosure for director (2) The disclosure required by subsection (1) shall be made, in the case of a director, (a) at the meeting at which a proposed contract or transaction is first considered; (b) if the director was not, at the time of the meeting referred to in paragraph (a), interested in a proposed contract or transaction, at the first meeting after he or she becomes so interested; (c) if the director becomes interested after a contract or transaction is made, at the first meeting after he or she becomes so interested; or (d) if an individual who is interested in a contract or transaction later becomes a director, at the first meeting after he or she becomes a director. Time of disclosure for officer (3) The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director, (a) immediately after he or she becomes aware that the contract, transaction, proposed contract or proposed transaction is to be considered or has been considered at a meeting; (b) if the officer becomes interested after a contract or transaction is made, immediately after he or she becomes so interested; or (c) if an individual who is interested in a contract later becomes an officer, immediately after he or she becomes an officer. Time of disclosure for director or officer (4) If a material contract or material transaction, whether entered into or proposed, is one that, in the ordinary course of the corporation’s business, would not require approval by the directors or shareholders, a director or officer shall disclose, in writing to the corporation or request to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of his or her interest immediately after he or she becomes aware of the contract or transaction. Voting (5) A director required to make a disclosure under subsection (1) shall not vote on any resolution to approve the contract or transaction unless the contract or transaction unless the contract or transaction (a) relates primarily to his or her remuneration as a director, officer, employee or agent of the corporation or an affiliate; (b) is for indemnity or insurance under section 124; or (c) is with an affiliate. Continuing disclosure (6) For the purposes of this section, a general notice to the directors declaring that a director or an officer is to be regarded as interested, for any of the following reasons, in a contract or transaction made with a party, is a sufficient declaration of interest in relation to the contract or transaction: (a) the director or officer is a director or officer, or acting in a similar capacity, of a party referred to in paragraph (1)(b) or (c); (b) the director or officer has a material interest in the party; or (c) there has been a material change in the nature of the director’s or the officer’s interest in the party. Access to disclosures (6.1) The shareholders of the corporation may examine the portions of any minutes of meetings of directors or of committees of directors that contain disclosures under this section, and any other documents that contain those disclosures, during the usual business hours of the corporation. Avoidance standards (7) A contract or transaction for which disclosure is required under subsection (1) is not invalid, and the director or officer is not accountable to the corporation or its shareholders for any profit realized from the contract or transaction, because of the director’s or officer’s interest in the contract or transaction or because the director was present or was counted to determine whether a quorum existed at the meeting of directors or committee of directors that considered the contract or transaction, if (a) disclosure of the interest was made in accordance with subsections (1) to (6); (b) the directors approved the contract or transaction; and (c) the contract or transaction was reasonable and fair to the corporation when it was approved. Confirmation by shareholders (7.1) Even if the conditions of subsection (7) are not met, a director or officer, acting honestly and in good faith, is not accountable to the corporation or to its shareholders for any profit realized from a contract or transaction for which disclosure is required under subsection (1), and the contract or transaction is not invalid by reason only of the interest of the director or officer in the contract or transaction, if (a) the contract or transaction is approved or confirmed by special resolution at a meeting of the shareholders; (b) disclosure of the interest was made to the shareholders in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and (c) the contract or transaction was reasonable and fair to the corporation when it was approved or confirmed. Application to court (8) If a director or an officer of a corporation fails to comply with this section, a court may, on application of the corporation or any of its shareholders, set aside the contract or transaction on any terms that it thinks fit, or require the director or officer to account to the corporation for any profit or gain realized on it, or do both those things. R.S., 1985, c. C-44, s. 120; 2001, c. 14, s. 48. Officers 121. Subject to the articles, the by-laws or any unanimous shareholder agreement, (a) the directors may designate the offices of the corporation, appoint as officers persons of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the corporation, except powers to do anything referred to in subsection 115(3); (b) a director may be appointed to any office of the corporation; and (c) two or more offices of the corporation may be held by the same person. R.S., 1985, c. C-44, s. 121; 2001, c. 14, s. 49(F). Duty of care of directors and officers 122. (1) Every director and officer of a corporation in exercising their powers and discharging their duties shall (a) act honestly and in good faith with a view to the best interests of the corporation; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Duty to comply (2) Every director and officer of a corporation shall comply with this Act, the regulations, articles, by-laws and any unanimous shareholder agreement. No exculpation (3) Subject to subsection 146(5), no provision in a contract, the articles, the by-laws or a resolution relieves a director or officer from the duty to act in accordance with this Act or the regulations or relieves them from liability for a breach thereof. R.S., 1985, c. C-44, s. 122; 1994, c. 24, s. 13(F); 2001, c. 14, s. 135(E). Dissent 123. (1) A director who is present at a meeting of directors or committee of directors is deemed to have consented to any resolution passed or action taken at the meeting unless (a) the director requests a dissent to be entered in the minutes of the meeting, or the dissent has been entered in the minutes; (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 corporation immediately after the meeting is adjourned. Loss of right to dissent (2) A director who votes for or consents to a resolution is not entitled to dissent under subsection (1). Dissent of absent director (3) A director who was not present at a meeting at which a resolution was passed or action taken is deemed to have consented thereto unless within seven days after becoming aware of the resolution, the director aware or the resolution, the director (a) causes a dissent to be placed with the minutes of the meeting; or (b) sends a dissent by registered mail or delivers it to the registered office of the corporation. Defence — reasonable diligence (4) A director is not liable under section 118 or 119, and has complied with his or her duties under subsection 122(2), if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. Defence — good faith (5) A director has complied with his or her duties under subsection 122(1) if the director relied in good faith on (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. R.S., 1985, c. C-44, s. 123; 2001, c. 14, ss. 50, 135(E). Indemnification 124. (1) A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity. Advance of costs (2) A corporation may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1). The individual shall repay the moneys if the individual does not fulfil the conditions of subsection (3). Limitation (3) A corporation may not indemnify an individual under subsection (1) unless the individual (a) acted honestly and in good faith with a view to the best interests of the corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful. Indemnification in derivative actions (4) A corporation may with the approval of a court, indemnify an individual referred to in subsection (1), or advance moneys under subsection (2), in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individual’s association with the corporation or other entity as described in subsection (1) against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfils the conditions set out in subsection (3). Right to indemnity (5) Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described in subsection (1), if the individual seeking indemnity (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and (b) fulfils the conditions set out in subsection (3). Insurance (6) A corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection (1) against any liability incurred by the individual (a) in the individual’s capacity as a director or officer of the corporation; or (b) in the individual’s capacity as a director or officer, or similar capacity, of another entity, if the individual acts or acted in that capacity at the corporation’s request. Application to court (7) A corporation, an individual or an entity referred to in subsection (1) may apply to a court for an order approving an indemnity under this section and the court may so order and make any further order that it sees fit. Notice to Director (8) An applicant under subsection (7) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. Other notice (9) On an application under subsection (7) the court may order notice to be given to any interested person and the person is entitled to appear and be heard in person or by counsel. R.S., 1985, c. C-44, s. 124; 2001, c. 14, s. 51. Remuneration 125. Subject to the articles, the by-laws or any unanimous shareholder agreement, the directors of a corporation may fix the remuneration of the directors, officers and employees of the corporation. 1974-75-76, c. 33, s. 120. PART XI INSIDER TRADING Definitions 126. (1) In this Part, "business combination" «regroupement d’entreprises » "business combination" means an acquisition of all or substantially all the property of one body corporate by another, or an amalgamation of two or more bodies corporate, or any similar reorganization between or among two or more bodies corporate; "distributing corporation" [Repealed, 2001, c. 14, s. 52] "insider" «initié » "insider" means, except in section 131, (a) a director or officer of a distributing corporation; (b) a director or officer of a subsidiary of a distributing corporation; (c) a director or officer of a body corporate that enters into a business combination with a distributing corporation; and (d) a person employed or retained by a distributing corporation; "officer" «dirigeant » "officer" means the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of an entity, or any other individual who performs functions for an entity similar to those normally performed by an individual occupying any of those offices; "share" «action » "share" means a share carrying voting rights under all circumstances or by reason of the occurrence of an event that has occurred and that is continuing, and includes (a) a security currently convertible into such a share, and (b) currently exercisable options and rights to acquire such a share or such a convertible security. Further interpretation (2) For the purposes of this Part, (a) a director or an officer of a body corporate that beneficially owns, directly or indirectly, shares of a distributing corporation, or that exercises control or direction over shares of the distributing corporation, or that has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the distributing corporation not including shares held by the body corporate as underwriter while those shares are in the course of a distribution to the public is deemed to be an insider of the distributing corporation; (b) a director or an officer of a body corporate that is a subsidiary is deemed to be an insider of its holding distributing corporation; (c) a person is deemed to beneficially own shares that are beneficially owned by a body corporate controlled directly or indirectly by the person; (d) a body corporate is deemed to own beneficially shares beneficially owned by its affiliates; and (e) the acquisition or disposition by an insider of an option or right to acquire a share is deemed to be a change in the beneficial ownership of the share to which the option or right to acquire relates. (3) and (4) [Repealed, 2001, c. 14, s. 52] R.S., 1985, c. C-44, s. 126; 1994, c. 24, s. 14(F); 2001, c. 14, ss. 52, 135(E). 127. to 129. [Repealed, 2001, c. 14, s. 53] Prohibition of short sale 130. (1) An insider shall not knowingly sell, directly or indirectly, a security of a distributing corporation or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold. Calls and puts (2) An insider shall not knowingly, directly or indirectly, sell a call or buy a put in respect of a security of the corporation or any of its affiliates. Exception (3) Despite subsection (1), an insider may sell a security they do not own if they own another security convertible into the security sold or an option or right to acquire the security sold and, within ten days after the sale, they (a) exercise the conversion privilege, option or right and deliver the security so acquired to the purchaser; or (b) transfer the convertible security, option or right to the purchaser. Offence (4) An insider who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding the greater of one million dollars and three times the profit made, or to imprisonment for a term not exceeding six months or to both. R.S., 1985, c. C-44, s. 130; 2001, c. 14, s. 54. Definitions 131. (1) In this section, "insider" means, with respect to a corporation, (a) the corporation; (b) an affiliate of the corporation; (c) a director or an officer of the corporation or of any person described in paragraph (b), (d) or (f); (d) a person who beneficially owns, directly or indirectly, shares of the corporation or who exercises control or direction over shares of the corporation, or who has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the corporation not including shares held by the person as underwriter while those shares are in the course of a distribution to the public; (e) a person, other than a person described in paragraph (f), employed or retained by the corporation or by a person described in paragraph (f); (f) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the corporation; (g) a person who received, while they were a person described in any of paragraphs (a) to (f), material confidential information concerning the corporation; (h) a person who receives material confidential information from a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph; and (i) a prescribed person. Expanded definition of "security" (2) For the purposes of this section, the following are deemed to be a security of the corporation: (a) a put, call, option or other right or obligation to purchase or sell a security of the corporation; and (b) a security of another entity, the market price of which varies materially with the market price of the securities of the corporation. Deemed insiders (3) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a corporation, or to enter into a business combination with a corporation, is an insider of the corporation with respect to material confidential information obtained from the corporation and is an insider of the corporation for the purposes of subsection (6). Deemed insiders (3.1) An insider of a person referred to in subsection (3), and an affiliate or associate of such a person, is an insider of the corporation referred to in that subsection. Paragraphs (1)(b) to (i) apply in determining whether a person is such an insider except that references to "corporation" in those paragraphs are to be read as references to "person described in subsection (3)". Insider trading — compensation to persons (4) An insider who purchases or sells a security of the corporation with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that (a) the insider reasonably believed that the information had been generally disclosed; (b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or (c) the purchase or sale of the security took place in the prescribed circumstances. Insider trading — compensation to corporation (5) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances described in paragraph (4)(a). Tipping — compensation to persons (6) An insider of the corporation who discloses to another person confidential information with respect to the corporation that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate for damages any person who subsequently sells securities of the corporation to, or purchases securities of the corporation from, any person that received the information, unless the insider establishes (a) that the insider reasonably believed that the information had been generally disclosed; (b) that the information was known, or ought reasonably to have been known, by the person who alleges to have suffered the damages; (c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (3) or (3.1); or (d) if the insider is a person described in subsection (3) or (3.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be. Tipping — compensation to corporation (7) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances described in paragraph (6)(a), (c) or (d). Measure of damages (8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing corporation, the court must consider the following: (a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and (b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security. Liability (9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary. Limitation (10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action. R.S., 1985, c. C-44, s. 131; 2001, c. 14, s. 54. PART XII SHAREHOLDERS Place of meetings 132. (1) Meetings of shareholders of a corporation shall be held at the place within Canada provided in the by-laws or, in the absence of such provision, at the place within Canada that the directors determine. Meeting outside Canada (2) Despite subsection (1), a meeting of shareholders of a corporation may be held at a place outside Canada if the place is specified in the articles or all the shareholders entitled to vote at the meeting agree that the meeting is to be held at that place. Exception (3) A shareholder who attends a meeting of shareholders held outside Canada is deemed to have agreed to it being held outside Canada except when the shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held. Participation in meeting by electronic means (4) Unless the by-laws otherwise provide, any person entitled to attend a meeting of shareholders may participate in the meeting, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the corporation makes available such a communication facility. A person participating in a meeting by such means is deemed for the purposes of this Act to be present at the meeting. Meeting held by electronic means (5) If the directors or the shareholders of a corporation call a meeting of shareholders pursuant to this Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide. R.S., 1985, c. C-44, s. 132; 2001, c. 14, s. 55. Calling annual meetings 133. (1) The directors of a corporation shall call an annual meeting of shareholders (a) not later than eighteen months after the corporation comes into existence; and (b) subsequently, not later than fifteen months after holding the last preceding annual meeting but no later than six months after the end of the corporation’s preceding financial year. Calling special meetings (2) The directors of a corporation may at any time call a special meeting of shareholders. Order to delay calling of annual meeting (3) Despite subsection (1), the corporation may apply to the court for an order extending the time for calling an annual meeting. R.S., 1985, c. C-44, s. 133; 2001, c. 14, s. 56. Fixing record date 134. (1) The directors may, within the prescribed period, fix in advance a date as the record date for the purpose of determining shareholders (a) entitled to receive payment of a dividend; (b) entitled to participate in a liquidation distribution; (c) entitled to receive notice of a meeting of shareholders; (d) entitled to vote at a meeting of shareholders; or (e) for any other purpose. No record date fixed (2) If no record date is fixed, (a) the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders shall be (i) at the close of business on the day immediately preceding the day on which the notice is given, or (ii) if no notice is given, the day on which the meeting is held; and (b) the record date for the determination of shareholders for any purpose other than to establish a shareholder’s right to receive notice of a meeting or to vote shall be at the close of business on the day on which the directors pass the resolution relating thereto. When record date fixed (3) If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice of the record date must be given within the prescribed period (a) by advertisement in a newspaper published or distributed in the place where the corporation has its registered office and in each place in Canada where it has a transfer agent or where a transfer of its shares may be recorded; and (b) by written notice to each stock exchange in Canada on which the shares of the corporation are listed for trading. (4) [Repealed, 2001, c. 14, s. 57] R.S., 1985, c. C-44, s. 134; 2001, c. 14, s. 57. Notice of meeting 135. (1) Notice of the time and place of a meeting of shareholders shall be sent within the prescribed period to (a) each shareholder entitled to vote at the meeting; (b) each director; and (c) the auditor of the corporation. Exception — not a distributing corporation (1.1) In the case of a corporation that is not a distributing corporation, the notice may be sent within a shorter period if so specified in the articles or by-laws. Exception — shareholders not registered (2) A notice of a meeting is not required to be sent to shareholders who were not registered on the records of the corporation or its transfer agent on the record date determined under paragraph 134(1)(c) or subsection 134(2), but failure to receive a notice does not deprive a shareholder of the right to vote at the meeting. Adjournment (3) If a meeting of shareholders is adjourned for less than thirty days it is not necessary, unless the by-laws otherwise provide, to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned. Notice of adjourned meeting (4) If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of thirty days or more, notice of the adjourned meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate of more than ninety days, subsection 149(1) does not apply. Business (5) All business transacted at a special meeting of shareholders and all business transacted at an annual meeting of shareholders, except consideration of the financial statements, auditor’s report, election of directors and re-appointment of the incumbent auditor, is deemed to be special business. Notice of business (6) Notice of a meeting of shareholders at which special business is to be transacted shall state (a) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon; and (b) the text of any special resolution to be submitted to the meeting. R.S., 1985, c. C-44, s. 135; 2001, c. 14, s. 58. Waiver of notice 136. A shareholder or any other person entitled to attend a meeting of shareholders may in any manner waive notice of a meeting of shareholders, and their attendance at a meeting of shareholders is a waiver of notice of the meeting, except where they attend a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. R.S., 1985, c. C-44, s. 136; 2001, c. 14, s. 135(E). Proposals 137. (1) Subject to subsections (1.1) and (1.2), a registered holder or beneficial owner of shares that are entitled to be voted at an annual meeting of shareholders may (a) submit to the corporation notice of any matter that the person proposes to raise at the meeting (a "proposal"); and (b) discuss at the meeting any matter in respect of which the person would have been entitled to submit a proposal. Persons eligible to make proposals (1.1) To be eligible to submit a proposal, a person (a) must be, for at least the prescribed period, the registered holder or the beneficial owner of at least the prescribed number of outstanding shares of the corporation; or (b) must have the support of persons who, in the aggregate, and including or not including the person that submits the proposal, have been, for at least the prescribed period, the registered holders, or the beneficial owners of, at least the prescribed number of outstanding shares of the corporation. Information to be provided (1.2) A proposal submitted under paragraph (1)(a) must be accompanied by the following information: (a) the name and address of the person and of the person’s supporters, if applicable; and (b) the number of shares held or owned by the person and the person’s supporters, if applicable, and the date the shares were acquired. Information not part of proposal (1.3) The information provided under subsection (1.2) does not form part of the proposal or of the supporting statement referred to in subsection (3) and is not included for the purposes of the prescribed maximum word limit set out in subsection (3). Proof may be required (1.4) If requested by the corporation within the prescribed period, a person who submits a proposal must provide proof, within the prescribed period, that the person meets the requirements of subsection (1.1). Information circular (2) A corporation that solicits proxies shall set out the proposal in the management proxy circular required by section 150 or attach the proposal thereto. Supporting statement (3) If so requested by the person who submits a proposal, the corporation shall include in the management proxy circular or attach to it a statement in support of the proposal by the person and the name and address of the person. The statement and the proposal must together not exceed the prescribed maximum number of words. Nomination for director (4) A proposal may include nominations for the election of directors if the proposal is signed by one or more holders of shares representing in the aggregate not less than five per cent of the shares or five per cent of the shares of a class of shares of the corporation entitled to vote at the meeting to which the proposal is to be presented, but this subsection does not preclude nominations made at a meeting of shareholders. Exemptions (5) A corporation is not required to comply with subsections (2) and (3) if (a) the proposal is not submitted to the corporation at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in connection with the previous annual meeting of shareholders; (b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers or security holders; (b.1) it clearly appears that the proposal does not relate in a significant way to the business or affairs of the corporation; (c) not more than the prescribed period before the receipt of a proposal, a person failed to present, in person or by proxy, at a meeting of shareholders, a proposal that at the person’s request, had been included in a management proxy circular relating to the meeting; (d) substantially the same proposal was submitted to shareholders in a management proxy circular or a dissident’s proxy circular relating to a meeting of shareholders held not more than the prescribed period before the receipt of the proposal and did not receive the prescribed minimum amount of support at the meeting; or (e) the rights conferred by this section are being abused to secure publicity. Corporation may refuse to include proposal (5.1) If a person who submits a proposal fails to continue to hold or own the number of shares referred to in subsection (1.1) up to and including the day of the meeting, the corporation is not required to set out in the management proxy circular, or attach to it, any proposal submitted by that person for any meeting held within the prescribed period following the date of the meeting. Immunity (6) No corporation or person acting on its behalf incurs any liability by reason only of circulating a proposal or statement in compliance with this section. Notice of refusal (7) If a corporation refuses to include a proposal in a management proxy circular, the corporation shall, within the prescribed period after the day on which it receives the proposal or the day on which it receives the proof of ownership under subsection (1.4), as the case may be, notify in writing the person submitting the proposal of its intention to omit the proposal from the management proxy circular and of the reasons for the refusal. Person may apply to court (8) On the application of a person submitting a proposal who claims to be aggrieved by a corporation’s refusal under subsection (7), a court may restrain the holding of the meeting to which the proposal is sought to be presented and make any further order it thinks fit. Corporation’s application to court (9) The corporation or any person claiming to be aggrieved by a proposal may apply to a court for an order permitting the corporation to omit the proposal from the management proxy circular, and the court, if it is satisfied that subsection (5) applies, may make such order as it thinks fit. Director entitled to notice (10) An applicant under subsection (8) or (9) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. R.S., 1985, c. C-44, s. 137; 2001, c. 14, s. 59. List of shareholders entitled to receive notice 138. (1) A corporation shall prepare an alphabetical list of its shareholders entitled to receive notice of a meeting, showing the number of shares held by each shareholder, (a) if a record date is fixed under paragraph 134(1)(c), not later than ten days after that date; or (b) if no record date is fixed, on the record date established under paragraph 134(2)(a). Voting list — if record date fixed (2) If a record date for voting is fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after the record date, an alphabetical list of shareholders entitled to vote as of the record date at a meeting of shareholders that shows the number of shares held by each shareholder. Voting list — if no record date fixed (3) If a record date for voting is not fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after a record date is fixed under paragraph 134(1)(c) or no later than the record date established under paragraph 134(2)(a), as the case may be, an alphabetical list of shareholders who are entitled to vote as of the record date that shows the number of shares held by each shareholder. Entitlement to vote (3.1) A shareholder whose name appears on a list prepared under subsection (2) or (3) is entitled to vote the shares shown opposite their name at the meeting to which the list relates. Examination of list (4) A shareholder may examine the list of shareholders (a) during usual business hours at the registered office of the corporation or at the place where its central securities register is maintained; and (b) at the meeting of shareholders for which the list was prepared. R.S., 1985, c. C-44, s. 138; 2001, c. 14, s. 60. Quorum 139. (1) Unless the by-laws otherwise provide, a quorum of shareholders is present at a meeting of shareholders, irrespective of the number of persons actually present at the meeting, if the holders of a majority of the shares entitled to vote at the meeting are present in person or represented by proxy. Opening quorum sufficient (2) If a quorum is present at the opening of a meeting of shareholders, the shareholders present may, unless the by-laws otherwise provide, proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting. Adjournment (3) If a quorum is not present at the opening of a meeting of shareholders, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other business. One shareholder meeting (4) If a corporation has only one shareholder, or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting. 1974-75-76, c. 33, s. 133; 1978-79, c. 9, s. 41. Right to vote 140. (1) Unless the articles otherwise provide, each share of a corporation entitles the holder thereof to one vote at a meeting of shareholders. Representative (2) If a body corporate or association is a shareholder of a corporation, the corporation shall recognize any individual authorized by a resolution of the directors or governing body of the body corporate or association to represent it at meetings of shareholders of the corporation. Powers of representative (3) An individual authorized under subsection (2) may exercise on behalf of the body corporate or association all the powers it could exercise if it were an individual shareholder. Joint shareholders (4) Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present, in person or by proxy, vote, they shall vote as one on the shares jointly held by them. R.S., 1985, c. C-44, s. 140; 2001, c. 14, s. 135(E). Voting 141. (1) Unless the by-laws otherwise provide, voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting. Ballot (2) A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands. Electronic voting (3) Despite subsection (1), unless the by-laws otherwise provide, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the corporation makes available such a communication facility. Voting while participating electronically (4) Unless the by-laws otherwise provide, any person participating in a meeting of shareholders under subsection 132(4) or (5) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the corporation has made available for that purpose. R.S., 1985, c. C-44, s. 141; 2001, c. 14, s. 61. Resolution in lieu of meeting 142. (1) Except where a written statement is submitted by a director under subsection 110(2) or by an auditor under subsection 168(5), (a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and (b) a resolution in writing dealing with all matters required by this Act to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Act relating to meetings of shareholders. Filing resolution (2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders. Evidence (3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. R.S., 1985, c. C-44, s. 142; 2001, c. 14, s. 62. Requisition of meeting 143. (1) The holders of not less than five per cent of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition. Form (2) The requisition referred to in subsection (1), which may consist of several documents of like form each signed by one or more shareholders, shall state the business to be transacted at the meeting and shall be sent to each director and to the registered office of the corporation. Directors calling meeting (3) On receiving the requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless (a) a record date has been fixed under paragraph 134(1)(c) and notice of it has been given under subsection 134(3); (b) the directors have called a meeting of shareholders and have given notice thereof under section 135; or (c) the business of the meeting as stated in the requisition includes matters described in paragraphs 137(5)(b) to (e). Shareholder calling meeting (4) If the directors do not within twenty-one days after receiving the requisition referred to in subsection (1) call a meeting, any shareholder who signed the requisition may call the meeting. Procedure (5) A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws, this Part and Part XIII. Reimbursement (6) Unless the shareholders otherwise resolve at a meeting called under subsection (4), the corporation shall reimburse the shareholders the expenses reasonably incurred by them in requisitioning, calling and holding the meeting. R.S., 1985, c. C-44, s. 143; 2001, c. 14, s. 63. Meeting called by court 144. (1) A court, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders or the Director, may order a meeting of a corporation to be called, held and conducted in the manner that the court directs, if (a) it is impracticable to call the meeting within the time or in the manner in which those meetings are to be called; (b) it is impracticable to conduct the meeting in the manner required by this Act or the by-laws; or (c) the court thinks that the meeting should be called, held and conducted within the time or in the manner it directs for any other reason. Varying quorum (2) Without restricting the generality of subsection (1), the court may order that the quorum required by the by-laws or this Act be varied or dispensed with at a meeting called, held and conducted pursuant to this section. Valid meeting (3) A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the corporation duly called, held and conducted. R.S., 1985, c. C-44, s. 144; 2001, c. 14, s. 64. Court review of election 145. (1) A corporation or a shareholder or director may apply to a court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation. Powers of court (2) On an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (b) an order declaring the result of the disputed election or appointment; (c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the corporation until a new election is held or appointment made; and (d) an order determining the voting rights of shareholders and of persons claiming to own shares. R.S., 1985, c. C-44, s. 145; 2001, c. 14, s. 65(F). Pooling agreement 145.1 A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as provided in the agreement. 2001, c. 14, s. 66. Unanimous shareholder agreement 146. (1) An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation is valid. Declaration by single shareholder (2) If a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, the declaration is deemed to be a unanimous shareholder agreement. Constructive party (3) A purchaser or transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement. When no notice given (4) If notice is not given to a purchaser or transferee of the existence of a unanimous shareholder agreement, in the manner referred to in subsection 49(8) or otherwise, the purchaser or transferee may, no later than 30 days after they become aware of the existence of the unanimous shareholder agreement, rescind the transaction by which they acquired the shares. Rights of shareholder (5) To the extent that a unanimous shareholder agreement restricts the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, parties to the unanimous shareholder agreement who are given that power to manage or supervise the management of the business and affairs of the corporation have all the rights, powers, duties and liabilities of a director of the corporation, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 119, to the same extent. Discretion of shareholders (6) Nothing in this section prevents shareholders from fettering their discretion when exercising the powers of directors under a unanimous shareholder agreement. R.S., 1985, c. C-44, s. 146; 1994, c. 24, s. 15(F); 2001, c. 14, s. 66. PART XIII PROXIES Definitions 147. In this Part, "form of proxy" «formulaire de procuration » "form of proxy" means a written or printed form that, on completion and execution by or on behalf of a shareholder, becomes a proxy; "intermediary" «intermédiaire » "intermediary" means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes (a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction; (b) a securities depositary; (c) a financial institution; (d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer; (e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act; (f) a nominee of a person referred to in any of paragraphs (a) to (e); and (g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security. "proxy" «procuration » "proxy" means a completed and executed form of proxy by means of which a shareholder appoints a proxyholder to attend and act on the shareholder’s behalf at a meeting of shareholders; "registrant" [Repealed, 2001, c. 14, s. 67] "solicit" or "solicitation" «sollicitation » "solicit" or "solicitation" (a) includes (i) a request for a proxy whether or not accompanied by or included in a form of proxy, (ii) a request to execute or not to execute a form of proxy or to revoke a proxy, (iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and (iv) the sending of a form of proxy to a shareholder under section 149; but (b) does not include (i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder, (ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, (iii) the sending by an intermediary of the documents referred to in section 153, (iv) a solicitation by a person in respect of shares of which the person is the beneficial owner, (v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision, (vi) a communication for the purposes of obtaining the number of shares required for a shareholder proposal under subsection 137(1.1), or (vii) a communication, other than a solicitation by or on behalf of the management of the corporation, that is made to shareholders, in any circumstances that may be prescribed; "solicitation by or on behalf of the management of a corporation" «sollicitation effectuée par la direction ou pour son compte » "solicitation by or on behalf of the management of a corporation" means a solicitation by any person pursuant to a resolution or instructions of, or with the acquiescence of, the directors or a committee of the directors. R.S., 1985, c. C-44, s. 147; 2001, c. 14, ss. 67, 135(E). Appointing proxyholder 148. (1) A shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy. Execution of proxy (2) A proxy shall be executed by the shareholder or by the shareholder’s attorney authorized in writing. Validity of proxy (3) A proxy is valid only at the meeting in respect of which it is given or any adjournment thereof. Revocation of proxy (4) A shareholder may revoke a proxy (a) by depositing an instrument in writing executed by the shareholder or by the shareholder’s attorney authorized in writing (i) at the registered office of the corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment thereof, at which the proxy is to be used, or (ii) with the chairman of the meeting on the day of the meeting or an adjournment thereof; or (b) in any other manner permitted by law. Deposit of proxies (5) The directors may specify in a notice calling a meeting of shareholders a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding the meeting or an adjournment thereof before which time proxies to be used at the meeting must be deposited with the corporation or its agent. R.S., 1985, c. C-44, s. 148; 2001, c. 14, s. 135(E). Mandatory solicitation 149. (1) Subject to subsection (2), the management of a corporation shall, concurrently with giving notice of a meeting of shareholders, send a form of proxy in prescribed form to each shareholder who is entitled to receive notice of the meeting. Exception (2) The management of the corporation is not required to send a form of proxy under subsection (1) if it (a) is not a distributing corporation; and (b) has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder. Offence (3) If the management of a corporation fails to comply, without reasonable cause, with subsection (1), the corporation is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars. Officers, etc., of corporations (4) Where a corporation commits an offence under subsection (3), any director or officer of the corporation who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the corporation has been prosecuted or convicted. R.S., 1985, c. C-44, s. 149; 2001, c. 14, s. 68. Soliciting proxies 150. (1) A person shall not solicit proxies unless (a) in the case of solicitation by or on behalf of the management of a corporation, a management proxy circular in prescribed form, either as an appendix to or as a separate document accompanying the notice of the meeting, or (b) in the case of any other solicitation, a dissident’s proxy circular in prescribed form stating the purposes of the solicitation is sent to the auditor of the corporation, to each shareholder whose proxy is solicited, to each director and, if paragraph (b) applies, to the corporation. Exception — solicitation to fifteen or fewer shareholders (1.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder. Exception — solicitation by public broadcast (1.2) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication. Copy to Director (2) A person required to send a management proxy circular or dissident’s proxy circular shall send concurrently a copy of it to the Director together with a statement in prescribed form, the form of proxy, any other documents for use in connection with the meeting and, in the case of a management proxy circular, a copy of the notice of meeting. Offence (3) A person who fails to comply with subsections (1) and (2) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. Officers, etc., of bodies corporate (4) Where a body corporate commits an offence under subsection (3), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. R.S., 1985, c. C-44, s. 150; 1992, c. 1, s. 54; 1994, c. 24, s. 16; 2001, c. 14, s. 69. Exemption 151. (1) On the application of an interested person, the Director may exempt the person, on any terms that the Director thinks fit, from any of the requirements of section 149 or subsection 150(1), which exemption may have retrospective effect. Publication (2) The Director shall set out in a publication generally available to the public the particulars of exemptions granted under this section together with the reasons for the exemptions. R.S., 1985, c. C-44, s. 151; 2001, c. 14, s. 70. Attendance at meeting 152. (1) A person who solicits a proxy and is appointed proxyholder shall attend in person or cause an alternate proxyholder to attend the meeting in respect of which the proxy is given and comply with the directions of the shareholder who appointed him. Right of a proxyholder (2) A proxyholder or an alternate proxyholder has the same rights as the shareholder by whom they were appointed to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting and, except where a proxyholder or an alternate proxyholder has conflicting instructions from more than one shareholder, to vote at such a meeting in respect of any matter by way of any show of hands. Show of hands (3) Despite subsections (1) and (2), if the chairperson of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to the knowledge of the chairperson will be the decision of the meeting in relation to any matter or group of matters is less than five per cent of all the votes that might be cast by shareholders personally or through proxy at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot, (a) the chairperson may conduct the vote in respect of that matter or group of matters by a show of hands; and (b) a proxyholder or alternate proxyholder may vote in respect of that matter or group of matters by a show of hands. Offence (4) A proxyholder or alternate proxyholder who without reasonable cause fails to comply with the directions of a shareholder under this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. R.S., 1985, c. C-44, s. 152; 2001, c. 14, ss. 71, 135(E). Duty of intermediary 153. (1) Shares of a corporation that are registered in the name of an intermediary or their nominee and not beneficially owned by the intermediary must not be voted unless the intermediary, without delay after receipt of the notice of the meeting, financial statements, management proxy circular, dissident’s proxy circular and any other documents other than the form of proxy sent to shareholders by or on behalf of any person for use in connection with the meeting, sends a copy of the document to the beneficial owner and, except when the intermediary has received written voting instructions from the beneficial owner, a written request for such instructions. Restriction on voting (2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner. Copies (3) A person by or on behalf of whom a solicitation is made shall provide, at the request of an intermediary, without delay, to the intermediary at the person’s expense the necessary number of copies of the documents referred to in subsection (1), other than copies of the document requesting voting instructions. Instructions to intermediary (4) An intermediary shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner. Beneficial owner as proxyholder (5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder. Validity (6) The failure of an intermediary to comply with this section does not render void any meeting of shareholders or any action taken at the meeting. Limitation (7) Nothing in this section gives an intermediary the right to vote shares that the intermediary is otherwise prohibited from voting. Offence (8) An intermediary who knowingly fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. Officers, etc., of bodies corporate (9) If an intermediary that is a body corporate commits an offence under subsection (8), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. R.S., 1985, c. C-44, s. 153; 2001, c. 14, s. 72. Restraining order 154. (1) If a form of proxy, management proxy circular or dissident’s proxy circular contains an untrue statement of a material fact or omits to state a material fact required therein or necessary to make a statement contained therein not misleading in the light of the circumstances in which it was made, an interested person or the Director may apply to a court and the court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order restraining the solicitation, the holding of the meeting, or any person from implementing or acting on any resolution passed at the meeting to which the form of proxy, management proxy circular or dissident’s proxy circular relates; (b) an order requiring correction of any form of proxy or proxy circular and a further solicitation; and (c) an order adjourning the meeting. Notice to Director (2) An applicant under this section shall give to the Director notice of the application and the Director is entitled to appear and to be heard in person or by counsel. 1974-75-76, c. 33, s. 148. PART XIV FINANCIAL DISCLOSURE Annual financial statements 155. (1) Subject to section 156, the directors of a corporation shall place before the shareholders at every annual meeting (a) comparative financial statements as prescribed relating separately to (i) the period that began on the date the corporation came into existence and ended not more than six months before the annual meeting or, if the corporation has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, and (ii) the immediately preceding financial year; (b) the report of the auditor, if any; and (c) any further information respecting the financial position of the corporation and the results of its operations required by the articles, the by-laws or any unanimous shareholder agreement. Exception (2) Notwithstanding paragraph (1)(a), the financial statements referred to in subparagraph (1)(a)(ii) may be omitted if the reason for the omission is set out in the financial statements, or in a note thereto, to be placed before the shareholders at an annual meeting. 1974-75-76, c. 33, s. 149. Exemption 156. The Director may, on application of a corporation, authorize the corporation to omit from its financial statements any item prescribed, or to dispense with the publication of any particular financial statement prescribed, and the Director may, if the Director reasonably believes that disclosure of the information contained in the statements would be detrimental to the corporation, permit the omission on any reasonable conditions that the Director thinks fit. R.S., 1985, c. C-44, s. 156; 2001, c. 14, s. 74. Consolidated statements 157. (1) A corporation shall keep at its registered office a copy of the financial statements of each of its subsidiary bodies corporate and of each body corporate the accounts of which are consolidated in the financial statements of the corporation. Examination (2) Shareholders of a corporation and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the corporation and may make extracts free of charge. Barring examination (3) A corporation may, within fifteen days of a request to examine under subsection (2), apply to a court for an order barring the right of any person to so examine, and the court may, if it is satisfied that such examination would be detrimental to the corporation or a subsidiary body corporate, bar such right and make any further order it thinks fit. Notice to Director (4) A corporation shall give the Director and the person asking to examine under subsection (2) notice of an application under subsection (3), and the Director and such person may appear and be heard in person or by counsel. R.S., 1985, c. C-44, s. 157; 2001, c. 14, s. 75. Approval of financial statements 158. (1) The directors of a corporation shall approve the financial statements referred to in section 155 and the approval shall be evidenced by the manual signature of one or more directors or a facsimile of the signatures reproduced in the statements. Condition precedent (2) A corporation shall not issue, publish or circulate copies of the financial statements referred to in section 155 unless the financial statements are (a) approved and signed in accordance with subsection (1); and (b) accompanied by the report of the auditor of the corporation, if any. R.S., 1985, c. C-44, s. 158; 2001, c. 14, s. 76. Copies to shareholders 159. (1) A corporation shall, not less than twenty-one days before each annual meeting of shareholders or before the signing of a resolution under paragraph 142(1)(b) in lieu of the annual meeting, send a copy of the documents referred to in section 155 to each shareholder, except to a shareholder who has informed the corporation in writing that he or she does not want a copy of those documents. Offence (2) A corporation that, without reasonable cause, fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars. R.S., 1985, c. C-44, s. 159; 2001, c. 14, s. 135(E). Copies to Director 160. (1) A distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall send a copy of the documents referred to in section 155 to the Director (a) not less than twenty-one days before each annual meeting of shareholders, or without delay after a resolution referred to in paragraph 142(1)(b) is signed; and (b) in any event within fifteen months after the last preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, but no later than six months after the end of the corporation’s preceding financial year. Subsidiary corporation exemption (2) A subsidiary corporation is not required to comply with this section if (a) the financial statements of its holding corporation are in consolidated or combined form and include the accounts of the subsidiary; and (b) the consolidated or combined financial statements of the holding corporation are included in the documents sent to the Director by the holding corporation in compliance with this section. Offence (3) A corporation that fails to comply with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars. R.S., 1985, c. C-44, s. 160; 1992, c. 1, s. 55; 1994, c. 24, s. 17; 2001, c. 14, s. 77. Qualification of auditor 161. (1) Subject to subsection (5), a person is disqualified from being an auditor of a corporation if the person is not independent of the corporation, any of its affiliates, or the directors or officers of any such corporation or its affiliates. Independence (2) For the purposes of this section, (a) independence is a question of fact; and (b) a person is deemed not to be independent if he or his business partner (i) is a business partner, a director, an officer or an employee of the corporation or any of its affiliates, or a business partner of any director, officer or employee of any such corporation or any of its affiliates, (ii) beneficially owns or controls, directly or indirectly, a material interest in the securities of the corporation or any of its affiliates, or (iii) has been a receiver, receiver-manager, liquidator or trustee in bankruptcy of the corporation or any of its affiliates within two years of his proposed appointment as auditor of the corporation. Business partners (2.1) For the purposes of subsection (2), a person’s business partner includes a shareholder of that person. Duty to resign (3) An auditor who becomes disqualified under this section shall, subject to subsection (5), resign forthwith after becoming aware of the disqualification. Disqualification order (4) An interested person may apply to a court for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant. Exemption order (5) An interested person may apply to a court for an order exempting an auditor from disqualification under this section and the court may, if it is satisfied that an exemption would not unfairly prejudice the shareholders, make an exemption order on such terms as it thinks fit, which order may have retrospective effect. R.S., 1985, c. C-44, s. 161; 2001, c. 14, ss. 78, 135(E). Appointment of auditor 162. (1) Subject to section 163, shareholders of a corporation shall, by ordinary resolution, at the first annual meeting of shareholders and at each succeeding annual meeting, appoint an auditor to hold office until the close of the next annual meeting. Eligibility (2) An auditor appointed under section 104 is eligible for appointment under subsection (1). Incumbent auditor (3) Notwithstanding subsection (1), if an auditor is not appointed at a meeting of shareholders, the incumbent auditor continues in office until a successor is appointed. Remuneration (4) The remuneration of an auditor may be fixed by ordinary resolution of the shareholders or, if not so fixed, may be fixed by the directors. 1974-75-76, c. 33, s. 156; 1978-79, c. 9, s. 48. Dispensing with auditor 163. (1) The shareholders of a corporation that is not a distributing corporation may resolve not to appoint an auditor. Limitation (2) A resolution under subsection (1) is valid only until the next succeeding annual meeting of shareholders. Unanimous consent (3) A resolution under subsection (1) is not valid unless it is consented to by all the shareholders, including shareholders not otherwise entitled to vote. (4) [Repealed, 1994, c. 24, s. 18] R.S., 1985, c. C-44, s. 163; 1992, c. 1, s. 56; 1994, c. 24, s. 18; 2001, c. 14, s. 79. Ceasing to hold office 164. (1) An auditor of a corporation ceases to hold office when the auditor (a) dies or resigns; or (b) is removed pursuant to section 165. Effective date of resignation (2) A resignation of an auditor becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later. R.S., 1985, c. C-44, s. 164; 2001, c. 14, s. 135(E). Removal of auditor 165. (1) The shareholders of a corporation may by ordinary resolution at a special meeting remove from office the auditor other than an auditor appointed by a court under section 167. Vacancy (2) A vacancy created by the removal of an auditor may be filled at the meeting at which the auditor is removed or, if not so filled, may be filled under section 166. 1974-75-76, c. 33, s. 159. Filling vacancy 166. (1) Subject to subsection (3), the directors shall forthwith fill a vacancy in the office of auditor. Calling meeting (2) If there is not a quorum of directors, the directors then in office shall, within twenty-one days after a vacancy in the office of auditor occurs, call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors, the meeting may be called by any shareholder. Shareholders filling vacancy (3) The articles of a corporation may provide that a vacancy in the office of auditor shall only be filled by vote of the shareholders. Unexpired term (4) An auditor appointed to fill a vacancy holds office for the unexpired term of the auditor’s predecessor. R.S., 1985, c. C-44, s. 166; 2001, c. 14, s. 135(E). Court appointed auditor 167. (1) If a corporation does not have an auditor, the court may, on the application of a shareholder or the Director, appoint and fix the remuneration of an auditor who holds office until an auditor is appointed by the shareholders. Exception (2) Subsection (1) does not apply if the shareholders have resolved under section 163 not to appoint an auditor. 1974-75-76, c. 33, s. 161. Right to attend meeting 168. (1) The auditor of a corporation is entitled to receive notice of every meeting of shareholders and, at the expense of the corporation, to attend and be heard on matters relating to the auditor’s duties. Duty to attend (2) If a director or shareholder of a corporation, whether or not the shareholder is entitled to vote at the meeting, gives written notice not less than ten days before a meeting of shareholders to the auditor or a former auditor of the corporation, the auditor or former auditor shall attend the meeting at the expense of the corporation and answer questions relating to their duties as auditor. Notice to corporation (3) A director or shareholder who sends a notice referred to in subsection (2) shall send concurrently a copy of the notice to the corporation. Offence (4) An auditor or former auditor of a corporation who fails without reasonable cause to comply with subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. Statement of auditor (5) An auditor is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing any proposed action or resolution when the auditor (a) resigns; (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the auditor from office; (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because the auditor’s term of office has expired or is about to expire; or (d) receives a notice or otherwise learns of a meeting of shareholders at which a resolution referred to in section 163 is to be proposed. Other statements (5.1) In the case of a proposed replacement of an auditor, whether through removal or at the end of the auditor’s term, the following rules apply with respect to other statements: (a) the corporation shall make a statement on the reasons for the proposed replacement; and (b) the proposed replacement auditor may make a statement in which he or she comments on the reasons referred to in paragraph (a). Circulating statement (6) The corporation shall send a copy of the statements referred to in subsections (5) and (5.1) without delay to every shareholder entitled to receive notice of a meeting referred to in subsection (1) and to the Director, unless the statement is included in or attached to a management proxy circular required by section 150. Replacing auditor (7) No person shall accept appointment or consent to be appointed as auditor of a corporation to replace an auditor who has resigned, been removed or whose term of office has expired or is about to expire until the person has requested and received from that auditor a written statement of the circumstances and the reasons, in that auditor’s opinion, for their replacement. Exception (8) Notwithstanding subsection (7), a person otherwise qualified may accept appointment or consent to be appointed as auditor of a corporation if, within fifteen days after making the request referred to in that subsection, the person does not receive a reply. Effect of non-compliance (9) Unless subsection (8) applies, an appointment as auditor of a corporation of a person who has not complied with subsection (7) is void. R.S., 1985, c. C-44, s. 168; 2001, c. 14, ss. 80, 135(E). Examination 169. (1) An auditor of a corporation shall make the examination that is in their opinion necessary to enable them to report in the prescribed manner on the financial statements required by this Act to be placed before the shareholders, except such financial statements or part thereof that relate to the period referred to in subparagraph 155(1)(a)(ii). Reliance on other auditor (2) Notwithstanding section 170, an auditor of a corporation may reasonably rely on the report of an auditor of a body corporate or an unincorporated business the accounts of which are included in whole or in part in the financial statements of the corporation. Reasonableness (3) For the purpose of subsection (2), reasonableness is a question of fact. Application (4) Subsection (2) applies whether or not the financial statements of the holding corporation reported on by the auditor are in consolidated form. R.S., 1985, c. C-44, s. 169; 2001, c. 14, s. 135(E). Right to information 170. (1) On the demand of an auditor of a corporation, the present or former directors, officers, employees or agents of the corporation shall furnish such (a) information and explanations, and (b) access to records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries as are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169 and that the directors, officers, employees or agents are reasonably able to furnish. Idem (2) On the demand of the auditor of a corporation, the directors of the corporation shall (a) obtain from the present or former directors, officers, employees and agents of any subsidiary of the corporation the information and explanations that the present or former directors, officers, employees and agents are reasonably able to furnish and that are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169; and (b) furnish the auditor with the information and explanations so obtained. No civil liability (3) A person who in good faith makes an oral or written communication under subsection (1) or (2) is not liable in any civil proceeding arising from having made the communication. R.S., 1985, c. C-44, s. 170; 2001, c. 14, ss. 81, 135(E). Audit committee 171. (1) Subject to subsection (2), a corporation described in subsection 102(2) shall, and any other corporation may, have an audit committee composed of not less than three directors of the corporation, a majority of whom are not officers or employees of the corporation or any of its affiliates. Exemption (2) The Director may, on the application of a corporation, authorize the corporation to dispense with an audit committee, and the Director may, if satisfied that the shareholders will not be prejudiced, permit the corporation to dispense with an audit committee on any reasonable conditions that the Director thinks fit. Duty of committee (3) An audit committee shall review the financial statements of the corporation before such financial statements are approved under section 158. Auditor’s attendance (4) The auditor of a corporation is entitled to receive notice of every meeting of the audit committee and, at the expense of the corporation, to attend and be heard thereat; and, if so requested by a member of the audit committee, shall attend every meeting of the committee held during the term of office of the auditor. Calling meeting (5) The auditor of a corporation or a member of the audit committee may call a meeting of the committee. Notice of errors (6) A director or an officer of a corporation shall forthwith notify the audit committee and the auditor of any error or mis-statement of which the director or officer becomes aware in a financial statement that the auditor or a former auditor has reported on. Error in financial statements (7) An auditor or former auditor of a corporation who is notified or becomes aware of an error or mis-statement in a financial statement on which they have reported, if in their opinion the error or mis-statement is material, shall inform each director accordingly. Duty of directors (8) When under subsection (7) the auditor or former auditor informs the directors of an error or mis-statement in a financial statement, the directors shall (a) prepare and issue revised financial statements; or (b) otherwise inform the shareholders and, if the corporation is one that is required to comply with section 160, it shall inform the Director of the error or mis-statement in the same manner as it informs the shareholders. Offence (9) Every director or officer of a corporation who knowingly fails to comply with subsection (6) or (8) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. R.S., 1985, c. C-44, s. 171; 2001, c. 14, ss. 82, 135(E). Qualified privilege (defamation) 172. Any oral or written statement or report made under this Act by the auditor or former auditor of a corporation has qualified privilege. 1974-75-76, c. 33, s. 166. PART XV FUNDAMENTAL CHANGES Amendment of articles 173. (1) Subject to sections 176 and 177, the articles of a corporation may by special resolution be amended to (a) change its name; (b) change the province in which its registered office is situated; (c) add, change or remove any restriction on the business or businesses that the corporation may carry on; (d) change any maximum number of shares that the corporation is authorized to issue; (e) create new classes of shares; (f) reduce or increase its stated capital, if its stated capital is set out in the articles; (g) change the designation of all or any of its shares, and add, change or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any of its shares, whether issued or unissued; (h) change the shares of any class or series, whether issued or unissued, into a different number of shares of the same class or series or into the same or a different number of shares of other classes or series; (i) divide a class of shares, whether issued or unissued, into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof; (j) authorize the directors to divide any class of unissued shares into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof; (k) authorize the directors to change the rights, privileges, restrictions and conditions attached to unissued shares of any series; (l) revoke, diminish or enlarge any authority conferred under paragraphs (j) and (k); (m) increase or decrease the number of directors or the minimum or maximum number of directors, subject to sections 107 and 112; (n) add, change or remove restrictions on the issue, transfer or ownership of shares; or (o) add, change or remove any other provision that is permitted by this Act to be set out in the articles. Termination (2) The directors of a corporation may, if authorized by the shareholders in the special resolution effecting an amendment under this section, revoke the resolution before it is acted on without further approval of the shareholders. Amendment of number name (3) Notwithstanding subsection (1), where a corporation has a designating number as a name, the directors may amend its articles to change that name to a verbal name. R.S., 1985, c. C-44, s. 173; 1994, c. 24, s. 19; 2001, c. 14, ss. 83, 134(F). Constraints on shares 174. (1) Subject to sections 176 and 177, a distributing corporation, any of the issued shares of which remain outstanding and are held by more than one person, may by special resolution amend its articles in accordance with the regulations to constrain (a) the issue or transfer of shares of any class or series to persons who are not resident Canadians; (b) the issue or transfer of shares of any class or series to enable the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province (i) to obtain a licence to carry on any business, (ii) to become a publisher of a Canadian newspaper or periodical, or (iii) to acquire shares of a financial intermediary as defined in the regulations; (c) the issue, transfer or ownership of shares of any class or series in order to assist the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control; (d) the issue, transfer or ownership of shares of any class or series in order to assist the corporation to comply with any prescribed law. (e) the issue, transfer or ownership of shares of any class or series to enable the corporation to be a registered labour-sponsored venture capital corporation under Part X.3 of the Income Tax Act. Exception in respect of paragraph (1)(c) (2) Paragraph (1)(c) does not permit a constraint on the issue, transfer or ownership of shares of any class or series of which any shares are outstanding unless (a) in the case of a constraint in respect of a class, the shares of the class, or (b) in the case of a constraint in respect of a series, the shares of the series are already subject to a constraint permitted under that paragraph. Limitation on ownership of shares (3) A corporation may, pursuant to paragraph (1)(c), limit the number of shares of that corporation that may be owned, or prohibit the ownership of shares, by any person whose ownership would adversely affect the ability of the corporation or any of its affiliates or associates to attain or maintain a level of Canadian ownership or control specified in its articles that equals or exceeds a specified level referred to in paragraph (1)(c). Change or removal of constraint (4) A corporation referred to in subsection (1) may by special resolution amend its articles to change or remove any constraint on the issue, transfer or ownership of its shares. Termination (5) The directors of a corporation may, if authorized by the shareholders in the special resolution effecting an amendment under subsection (1) or (4), revoke the resolution before it is acted on without further approval of the shareholders. Regulations (6) Subject to subsections 261(2) and (3), the Governor in Council may make regulations with respect to a corporation that constrains the issue, transfer or ownership of its shares prescribing (a) the disclosure required of the constraints in documents issued or published by the corporation; (b) the duties and powers of the directors to refuse to issue or register transfers of shares in accordance with the articles of the corporation; (c) the limitations on voting rights of any shares held contrary to the articles of the corporation; (d) the powers of the directors to require disclosure of beneficial ownership of shares of the corporation and the right of the corporation and its directors, employees and agents to rely on such disclosure and the effects of such reliance; and (e) the rights of any person owning shares of the corporation at the time of an amendment to its articles constraining share issues or transfers. Validity of acts (7) An issue or a transfer of a share or an act of a corporation is valid notwithstanding any failure to comply with this section or the regulations. R.S., 1985, c. C-44, s. 174; 1991, c. 45, s. 554, c. 47, s. 722; 1994, c. 21, s. 125; 2001, c. 14, ss. 84, 134(F). Proposal to amend 175. (1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 137, make a proposal to amend the articles. Notice of amendment (2) Notice of a meeting of shareholders at which a proposal to amend the articles is to be considered shall set out the proposed amendment and, where applicable, shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amendment. R.S., 1985, c. C-44, s. 175; 2001, c. 14, s. 135(E). Class vote 176. (1) The holders of shares of a class or, subject to subsection (4), of a series are, unless the articles otherwise provide in the case of an amendment referred to in paragraphs (a), (b) and (e), entitled to vote separately as a class or series on a proposal to amend the articles to (a) increase or decrease any maximum number of authorized shares of such class, or increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the shares of such class; (b) effect an exchange, reclassification or cancellation of all or part of the shares of such class; (c) add, change or remove the rights, privileges, restrictions or conditions attached to the shares of such class and, without limiting the generality of the foregoing, (i) remove or change prejudicially rights to accrued dividends or rights to cumulative dividends, (ii) add, remove or change prejudicially redemption rights, (iii) reduce or remove a dividend preference or a liquidation preference, or (iv) add, remove or change prejudicially conversion privileges, options, voting, transfer or pre-emptive rights, or rights to acquire securities of a corporation, or sinking fund provisions; (d) increase the rights or privileges of any class of shares having rights or privileges equal or superior to the shares of such class; (e) create a new class of shares equal or superior to the shares of such class; (f) make any class of shares having rights or privileges inferior to the shares of such class equal or superior to the shares of such class; (g) effect an exchange or create a right of exchange of all or part of the shares of another class into the shares of such class; or (h) constrain the issue, transfer or ownership of the shares of such class or change or remove such constraint. Exception (2) Subsection (1) does not apply in respect of a proposal to amend the articles to add a right or privilege for a holder to convert shares of a class or series into shares of another class or series that is subject to a constraint permitted under paragraph 174(1)(c) but is otherwise equal to the class or series first mentioned. Deeming provision (3) For the purpose of paragraph (1)(e), a new class of shares, the issue, transfer or ownership of which is to be constrained by an amendment to the articles pursuant to paragraph 174(1)(c), that is otherwise equal to an existing class of shares shall be deemed not to be equal or superior to the existing class of shares. Limitation (4) The holders of a series of shares of a class are entitled to vote separately as a series under subsection (1) only if such series is affected by an amendment in a manner different from other shares of the same class. Right to vote (5) Subsection (1) applies whether or not shares of a class or series otherwise carry the right to vote. Separate resolutions (6) A proposed amendment to the articles referred to in subsection (1) is adopted when the holders of the shares of each class or series entitled to vote separately thereon as a class or series have approved such amendment by a special resolution. R.S., 1985, c. C-44, s. 176; 2001, c. 14, s. 134(F). Delivery of articles 177. (1) Subject to any revocation under subsection 173(2) or 174(5), after an amendment has been adopted under section 173, 174 or 176 articles of amendment in the form that the Director fixes shall be sent to the Director. Reduction of stated capital (2) If an amendment effects or requires a reduction of stated capital, subsections 38(3) and (4) apply. R.S., 1985, c. C-44, s. 177; 2001, c. 14, s. 85. Certificate of amendment 178. On receipt of articles of amendment, the Director shall issue a certificate of amendment in accordance with section 262. 1974-75-76, c. 33, s. 172. Effect of certificate 179. (1) An amendment becomes effective on the date shown in the certificate of amendment and the articles are amended accordingly. Rights preserved (2) No amendment to the articles affects an existing cause of action or claim or liability to prosecution in favour of or against the corporation or its directors or officers, or any civil, criminal or administrative action or proceeding to which a corporation or its directors or officers is a party. 1974-75-76, c. 33, s. 173. Restated articles 180. (1) The directors may at any time, and shall when reasonably so directed by the Director, restate the articles of incorporation. Delivery of articles (2) Restated articles of incorporation in the form that the Director fixes shall be sent to the Director. Restated certificate (3) On receipt of restated articles of incorporation, the Director shall issue a restated certificate of incorporation in accordance with section 262. Effect of certificate (4) Restated articles of incorporation are effective on the date shown in the restated certificate of incorporation and supersede the original articles of incorporation and all amendments thereto. R.S., 1985, c. C-44, s. 180; 2001, c. 14, s. 86. Amalgamation 181. Two or more corporations, including holding and subsidiary corporations, may amalgamate and continue as one corporation. 1974-75-76, c. 33, s. 175. Amalgamation agreement 182. (1) Each corporation proposing to amalgamate shall enter into an agreement setting out the terms and means of effecting the amalgamation and, in particular, setting out (a) the provisions that are required to be included in articles of incorporation under section 6; (b) the name and address of each proposed director of the amalgamated corporation; (c) the manner in which the shares of each amalgamating corporation are to be converted into shares or other securities of the amalgamated corporation; (d) if any shares of an amalgamating corporation are not to be converted into securities of the amalgamated corporation, the amount of money or securities of any body corporate that the holders of such shares are to receive in addition to or instead of securities of the amalgamated corporation; (e) the manner of payment of money instead of the issue of fractional shares of the amalgamated corporation or of any other body corporate the securities of which are to be received in the amalgamation; (f) whether the by-laws of the amalgamated corporation are to be those of one of the amalgamating corporations and, if not, a copy of the proposed by-laws; and (g) details of any arrangements necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated corporation. Cancellation (2) If shares of one of the amalgamating corporations are held by or on behalf of another of the amalgamating corporations, the amalgamation agreement shall provide for the cancellation of such shares when the amalgamation becomes effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of such shares into shares of the amalgamated corporation. 1974-75-76, c. 33, s. 176. Shareholder approval 183. (1) The directors of each amalgamating corporation shall submit the amalgamation agreement for approval to a meeting of the holders of shares of the amalgamating corporation of which they are directors and, subject to subsection (4), to the holders of each class or series of such shares. Notice of meeting (2) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder of each amalgamating corporation, and shall (a) include or be accompanied by a copy or summary of the amalgamation agreement; and (b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amalgamation. Right to vote (3) Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation agreement whether or not it otherwise carries the right to vote. Class vote (4) The holders of shares of a class or series of shares of each amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation agreement if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the articles, would entitle such holders to vote as a class or series under section 176. Shareholder approval (5) Subject to subsection (4), an amalgamation agreement is adopted when the shareholders of each amalgamating corporation have approved of the amalgamation by special resolutions. Termination (6) An amalgamation agreement may provide that at any time before the issue of a certificate of amalgamation the agreement may be terminated by the directors of an amalgamating corporation, notwithstanding approval of the agreement by the shareholders of all or any of the amalgamating corporations. R.S., 1985, c. C-44, s. 183; 2001, c. 14, ss. 87, 135(E). Vertical short-form amalgamation 184. (1) A holding corporation and one or more of its subsidiary corporations may amalgamate and continue as one corporation without complying with sections 182 and 183 if (a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; (a.1) all of the issued shares of each amalgamating subsidiary corporation are held by one or more of the other amalgamating corporations; and (b) the resolutions provide that (i) the shares of each amalgamating subsidiary corporation shall be cancelled without any repayment of capital in respect thereof, (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating holding corporation, and (iii) no securities shall be issued by the amalgamated corporation in connection with the amalgamation and the stated capital of the amalgamated corporation shall be the same as the stated capital of the amalgamating holding corporation. Horizontal short-form amalgamation (2) Two or more wholly-owned subsidiary corporations of the same holding body corporate may amalgamate and continue as one corporation without complying with sections 182 and 183 if (a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and (b) the resolutions provide that (i) the shares of all but one of the amalgamating subsidiary corporations shall be cancelled without any repayment of capital in respect thereof, (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating subsidiary corporation whose shares are not cancelled, and (iii) the stated capital of the amalgamating subsidiary corporations whose shares are cancelled shall be added to the stated capital of the amalgamating subsidiary corporation whose shares are not cancelled. R.S., 1985, c. C-44, s. 184; 1994, c. 24, s. 20; 2001, c. 14, s. 88. Sending of articles 185. (1) Subject to subsection 183(6), after an amalgamation has been adopted under section 183 or approved under section 184, articles of amalgamation in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106. Attached declarations (2) The articles of amalgamation shall have attached thereto a statutory declaration of a director or an officer of each amalgamating corporation that establishes to the satisfaction of the Director that (a) there are reasonable grounds for believing that (i) each amalgamating corporation is and the amalgamated corporation will be able to pay its liabilities as they become due, and (ii) the realizable value of the amalgamated corporation’s assets will not be less than the aggregate of its liabilities and stated capital of all classes; and (b) there are reasonable grounds for believing that (i) no creditor will be prejudiced by the amalgamation, or (ii) adequate notice has been given to all known creditors of the amalgamating corporations and no creditor objects to the amalgamation otherwise than on grounds that are frivolous or vexatious. Adequate notice (3) For the purposes of subsection (2), adequate notice is given if (a) a notice in writing is sent to each known creditor having a claim against the corporation that exceeds one thousand dollars; (b) a notice is published once in a newspaper published or distributed in the place where the corporation has its registered office and reasonable notice thereof is given in each province where the corporation carries on business; and (c) each notice states that the corporation intends to amalgamate with one or more specified corporations in accordance with this Act and that a creditor of the corporation may object to the amalgamation within thirty days from the date of the notice. Certificate of amalgamation (4) On receipt of articles of amalgamation, the Director shall issue a certificate of amalgamation in accordance with section 262. R.S., 1985, c. C-44, s. 185; 2001, c. 14, s. 89. Effect of certificate 186. On the date shown in a certificate of amalgamation (a) the amalgamation of the amalgamating corporations and their continuance as one corporation become effective; (b) the property of each amalgamating corporation continues to be the property of the amalgamated corporation; (c) the amalgamated corporation continues to be liable for the obligations of each amalgamating corporation; (d) an existing cause of action, claim or liability to prosecution is unaffected; (e) a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may be continued to be prosecuted by or against the amalgamated corporation; (f) a conviction against, or ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against the amalgamated corporation; and (g) the articles of amalgamation are deemed to be the articles of incorporation of the amalgamated corporation and the certificate of amalgamation is deemed to be the certificate of incorporation of the amalgamated corporation. 1974-75-76, c. 33, s. 180. Amalgamation under other federal Acts 186.1 (1) Subject to subsection (2), a corporation may not amalgamate with one or more bodies corporate pursuant to the Bank Act, the Canada Cooperatives Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act unless the corporation is first authorized to do so by the shareholders in accordance with section 183. Short-form amalgamations (2) A corporation may not amalgamate with one or more bodies corporate pursuant to the provisions of one of the Acts referred to in subsection (1) respecting short-form amalgamations unless the corporation is first authorized to do so by the directors in accordance with section 184. Discontinuance (3) On receipt of a notice satisfactory to the Director that a corporation has amalgamated pursuant to one of the Acts referred to in subsection (1), the Director shall file the notice and issue a certificate of discontinuance in accordance with section 262. Notice deemed to be articles (4) For the purposes of section 262, a notice referred to in subsection (3) is deemed to be articles that are in the form that the Director fixes. Act ceases to apply (5) This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance. Non-application (6) For greater certainty, section 185 does not apply to a corporation that amalgamates pursuant to one of the Acts referred to in subsection (1). 1994, c. 24, s. 21; 1998, c. 1, s. 380; 2001, c. 14, s. 90. Continuance (import) 187. (1) A body corporate incorporated otherwise than by or under an Act of Parliament may, if so authorized by the laws of the jurisdiction where it is incorporated, apply to the Director for a certificate of continuance. Amendments in articles of continuance (2) A body corporate that applies for continuance under subsection (1) may, without so stating in its articles of continuance, effect by those articles any amendment to its Act of incorporation, articles, letters patent or memorandum or articles of association if the amendment is an amendment a corporation incorporated under this Act may make to its articles. Articles of continuance (3) Articles of continuance in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106. Certificate of continuance (4) On receipt of articles of continuance, the Director shall issue a certificate of continuance in accordance with section 262. Effect of certificate (5) On the date shown in the certificate of continuance (a) the body corporate becomes a corporation to which this Act applies as if it had been incorporated under this Act; (b) the articles of continuance are deemed to be the articles of incorporation of the continued corporation; and (c) the certificate of continuance is deemed to be the certificate of incorporation of the continued corporation. Copy of certificate (6) The Director shall forthwith send a copy of the certificate of continuance to the appropriate official or public body in the jurisdiction in which continuance under this Act was authorized. Rights preserved (7) When a body corporate is continued as a corporation under this Act, (a) the property of the body corporate continues to be the property of the corporation; (b) the corporation continues to be liable for the obligations of the body corporate; (c) an existing cause of action, claim or liability to prosecution is unaffected; (d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may be continued to be prosecuted by or against the corporation; and (e) a conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the corporation. Issued shares (8) Subject to subsection 49(8), a share of a body corporate issued before the body corporate was continued under this Act is deemed to have been issued in compliance with this Act and with the provisions of the articles of continuance irrespective of whether the share is fully paid and irrespective of any designation, rights, privileges, restrictions or conditions set out on or referred to in the certificate representing the share; and continuance under this section does not deprive a holder of any right or privilege that the holder claims under, or relieve the holder of any liability in respect of, an issued share. Exception in case of convertible shares (9) Where a corporation continued under this Act had, before it was so continued, issued a share certificate in registered form that is convertible to bearer form, the corporation may, if a holder of such a share certificate exercises the conversion privilege attached thereto, issue a share certificate in bearer form for the same number of shares to the holder. Definition of "share" (10) For the purposes of subsections (8) and (9), "share" includes an instrument referred to in subsection 29(1), a share warrant as defined in the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, or a like instrument. Where continued reference to par value shares permissible (11) Where the Director determines, on the application of a body corporate, that it is not practicable to change a reference to the nominal or par value of shares of a class or series that the body corporate was authorized to issue before it was continued under this Act, the Director may, notwithstanding subsection 24(1), permit the body corporate to continue to refer in its articles to those shares, whether issued or unissued, as shares having a nominal or par value. Limitation (12) A corporation shall set out in its articles the maximum number of shares of a class or series referred to in subsection (11) and may not amend its articles to increase that maximum number of shares or to change the nominal or par value of those shares. R.S., 1985, c. C-44, s. 187; 2001, c. 14, ss. 91, 135(E). Continuance — other jurisdictions 188. (1) Subject to subsection (10), a corporation may apply to the appropriate official or public body of another jurisdiction requesting that the corporation be continued as if it had been incorporated under the laws of that other jurisdiction if the corporation (a) is authorized by the shareholders in accordance with this section to make the application; and (b) establishes to the satisfaction of the Director that its proposed continuance in the other jurisdiction will not adversely affect creditors or shareholders of the corporation. Continuance — other federal Acts (2) A corporation that is authorized by the shareholders in accordance with this section may apply to the appropriate Minister for its continuance under the Bank Act, the Canada Cooperatives Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act. (2.1) [Repealed, 2001, c. 14, s. 92] Notice of meeting (3) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder and shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a discontinuance under this Act. Right to vote (4) Each share of the corporation carries the right to vote in respect of a continuance whether or not it otherwise carries the right to vote. Shareholder approval (5) An application for continuance becomes authorized when the shareholders voting thereon have approved of the continuance by a special resolution. Termination (6) The directors of a corporation may, if authorized by the shareholders at the time of approving an application for continuance under this section, abandon the application without further approval of the shareholders. Discontinuance (7) On receipt of a notice satisfactory to the Director that the corporation has been continued under the laws of another jurisdiction or under one of the Acts referred to in subsection (2.1), the Director shall file the notice and issue a certificate of discontinuance in accordance with section 262. Notice deemed to be articles (8) For the purposes of section 262, a notice referred to in subsection (7) is deemed to be articles that are in the form that the Director fixes. Rights preserved (9) This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance. Prohibition (10) A corporation shall not be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that (a) the property of the corporation continues to be the property of the body corporate; (b) the body corporate continues to be liable for the obligations of the corporation; (c) an existing cause of action, claim or liability to prosecution is unaffected; (d) a civil, criminal or administrative action or proceeding pending by or against the corporation may be continued to be prosecuted by or against the body corporate; and (e) a conviction against, or ruling, order or judgment in favour of or against, the corporation may be enforced by or against the body corporate. R.S., 1985, c. C-44, s. 188; 1991, c. 45, s. 555, c. 46, s. 596, c. 47, s. 723; 1994, c. 24, s. 22; 1998, c. 1, s. 381; 2001, c. 14, ss. 92, 135(E); 2007, c. 6, s. 400. Borrowing powers 189. (1) Unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors of a corporation may, without authorization of the shareholders, (a) borrow money on the credit of the corporation; (b) issue, reissue, sell, pledge or hypothecate debt obligations of the corporation; (c) give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and (d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation. Delegation of borrowing powers (2) Notwithstanding subsection 115(3) and paragraph 121(a), unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors may, by resolution, delegate the powers referred to in subsection (1) to a director, a committee of directors or an officer. Extraordinary sale, lease or exchange (3) A sale, lease or exchange of all or substantially all the property of a corporation other than in the ordinary course of business of the corporation requires the approval of the shareholders in accordance with subsections (4) to (8). Notice of meeting (4) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder and shall (a) include or be accompanied by a copy or summary of the agreement of sale, lease or exchange; and (b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a sale, lease or exchange referred to in subsection (3). Shareholder approval (5) At the meeting referred to in subsection (4), the shareholders may authorize the sale, lease or exchange and may fix or authorize the directors to fix any of the terms and conditions thereof. Right to vote (6) Each share of the corporation carries the right to vote in respect of a sale, lease or exchange referred to in subsection (3) whether or not it otherwise carries the right to vote. Class vote (7) The holders of shares of a class or series of shares of the corporation are entitled to vote separately as a class or series in respect of a sale, lease or exchange referred to in subsection (3) only if such class or series is affected by the sale, lease or exchange in a manner different from the shares of another class or series. Shareholder approval (8) A sale, lease or exchange referred to in subsection (3) is adopted when the holders of each class or series entitled to vote thereon have approved of the sale, lease or exchange by a special resolution. Termination (9) The directors of a corporation may, if authorized by the shareholders approving a proposed sale, lease or exchange, and subject to the rights of third parties, abandon the sale, lease or exchange without further approval of the shareholders. R.S., 1985, c. C-44, s. 189; 2001, c. 14, ss. 93, 135(E). Right to dissent 190. (1) Subject to sections 191 and 241, a holder of shares of any class of a corporation may dissent if the corporation is subject to an order under paragraph 192(4)(d) that affects the holder or if the corporation resolves to (a) amend its articles under section 173 or 174 to add, change or remove any provisions restricting or constraining the issue, transfer or ownership of shares of that class; (b) amend its articles under section 173 to add, change or remove any restriction on the business or businesses that the corporation may carry on; (c) amalgamate otherwise than under section 184; (d) be continued under section 188; (e) sell, lease or exchange all or substantially all its property under subsection 189(3); or (f) carry out a going-private transaction or a squeeze-out transaction. Further right (2) A holder of shares of any class or series of shares entitled to vote under section 176 may dissent if the corporation resolves to amend its articles in a manner described in that section. If one class of shares (2.1) The right to dissent described in subsection (2) applies even if there is only one class of shares. Payment for shares (3) In addition to any other right the shareholder may have, but subject to subsection (26), a shareholder who complies with this section is entitled, when the action approved by the resolution from which the shareholder dissents or an order made under subsection 192(4) becomes effective, to be paid by the corporation the fair value of the shares in respect of which the shareholder dissents, determined as of the close of business on the day before the resolution was adopted or the order was made. No partial dissent (4) A dissenting shareholder may only claim under this section with respect to all the shares of a class held on behalf of any one beneficial owner and registered in the name of the dissenting shareholder. Objection (5) A dissenting shareholder shall send to the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution, unless the corporation did not give notice to the shareholder of the purpose of the meeting and of their right to dissent. Notice of resolution (6) The corporation shall, within ten days after the shareholders adopt the resolution, send to each shareholder who has filed the objection referred to in subsection (5) notice that the resolution has been adopted, but such notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn their objection. Demand for payment (7) A dissenting shareholder shall, within twenty days after receiving a notice under subsection (6) or, if the shareholder does not receive such notice, within twenty days after learning that the resolution has been adopted, send to the corporation a written notice containing (a) the shareholder’s name and address; (b) the number and class of shares in respect of which the shareholder dissents; and (c) a demand for payment of the fair value of such shares. Share certificate (8) A dissenting shareholder shall, within thirty days after sending a notice under subsection (7), send the certificates representing the shares in respect of which the shareholder dissents to the corporation or its transfer agent. Forfeiture (9) A dissenting shareholder who fails to comply with subsection (8) has no right to make a claim under this section. Endorsing certificate (10) A corporation or its transfer agent shall endorse on any share certificate received under subsection (8) a notice that the holder is a dissenting shareholder under this section and shall forthwith return the share certificates to the dissenting shareholder. Suspension of rights (11) On sending a notice under subsection (7), a dissenting shareholder ceases to have any rights as a shareholder other than to be paid the fair value of their shares as determined under this section except where (a) the shareholder withdraws that notice before the corporation makes an offer under subsection (12), (b) the corporation fails to make an offer in accordance with subsection (12) and the shareholder withdraws the notice, or (c) the directors revoke a resolution to amend the articles under subsection 173(2) or 174(5), terminate an amalgamation agreement under subsection 183(6) or an application for continuance under subsection 188(6), or abandon a sale, lease or exchange under subsection 189(9), in which case the shareholder’s rights are reinstated as of the date the notice was sent. Offer to pay (12) A corporation shall, not later than seven days after the later of the day on which the action approved by the resolution is effective or the day the corporation received the notice referred to in subsection (7), send to each dissenting shareholder who has sent such notice (a) a written offer to pay for their shares in an amount considered by the directors of the corporation to be the fair value, accompanied by a statement showing how the fair value was determined; or (b) if subsection (26) applies, a notification that it is unable lawfully to pay dissenting shareholders for their shares. Same terms (13) Every offer made under subsection (12) for shares of the same class or series shall be on the same terms. Payment (14) Subject to subsection (26), a corporation shall pay for the shares of a dissenting shareholder within ten days after an offer made under subsection (12) has been accepted, but any such offer lapses if the corporation does not receive an acceptance thereof within thirty days after the offer has been made. Corporation may apply to court (15) Where a corporation fails to make an offer under subsection (12), or if a dissenting shareholder fails to accept an offer, the corporation may, within fifty days after the action approved by the resolution is effective or within such further period as a court may allow, apply to a court to fix a fair value for the shares of any dissenting shareholder. Shareholder application to court (16) If a corporation fails to apply to a court under subsection (15), a dissenting shareholder may apply to a court for the same purpose within a further period of twenty days or within such further period as a court may allow. Venue (17) An application under subsection (15) or (16) shall be made to a court having jurisdiction in the place where the corporation has its registered office or in the province where the dissenting shareholder resides if the corporation carries on business in that province. No security for costs (18) A dissenting shareholder is not required to give security for costs in an application made under subsection (15) or (16). Parties (19) On an application to a court under subsection (15) or (16), (a) all dissenting shareholders whose shares have not been purchased by the corporation shall be joined as parties and are bound by the decision of the court; and (b) the corporation shall notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. Powers of court (20) On an application to a court under subsection (15) or (16), the court may determine whether any other person is a dissenting shareholder who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting shareholders. Appraisers (21) A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of the dissenting shareholders. Final order (22) The final order of a court shall be rendered against the corporation in favour of each dissenting shareholder and for the amount of the shares as fixed by the court. Interest (23) A court may in its discretion allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective until the date of payment. Notice that subsection (26) applies (24) If subsection (26) applies, the corporation shall, within ten days after the pronouncement of an order under subsection (22), notify each dissenting shareholder that it is unable lawfully to pay dissenting shareholders for their shares. Effect where subsection (26) applies (25) If subsection (26) applies, a dissenting shareholder, by written notice delivered to the corporation within thirty days after receiving a notice under subsection (24), may (a) withdraw their notice of dissent, in which case the corporation is deemed to consent to the withdrawal and the shareholder is reinstated to their full rights as a shareholder; or (b) retain a status as a claimant against the corporation, to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the corporation but in priority to its shareholders. Limitation (26) A corporation shall not make a payment to a dissenting shareholder under this section if there are reasonable grounds for believing that (a) the corporation is or would after the payment be unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities. R.S., 1985, c. C-44, s. 190; 1994, c. 24, s. 23; 2001, c. 14, ss. 94, 134(F), 135(E). Definition of "reorganization" 191. (1) In this section, "reorganization" means a court order made under (a) section 241; (b) the Bankruptcy and Insolvency Act approving a proposal; or (c) any other Act of Parliament that affects the rights among the corporation, its shareholders and creditors. Powers of court (2) If a corporation is subject to an order referred to in subsection (1), its articles may be amended by such order to effect any change that might lawfully be made by an amendment under section 173. Further powers (3) If a court makes an order referred to in subsection (1), the court may also (a) authorize the issue of debt obligations of the corporation, whether or not convertible into shares of any class or having attached any rights or options to acquire shares of any class, and fix the terms thereof; and (b) appoint directors in place of or in addition to all or any of the directors then in office. Articles of reorganization (4) After an order referred to in subsection (1) has been made, articles of reorganization in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable. Certificate of reorganization (5) On receipt of articles of reorganization, the Director shall issue a certificate of amendment in accordance with section 262. Effect of certificate (6) A reorganization becomes effective on the date shown in the certificate of amendment and the articles of incorporation are amended accordingly. No dissent (7) A shareholder is not entitled to dissent under section 190 if an amendment to the articles of incorporation is effected under this section. R.S., 1985, c. C-44, s. 191; 1992, c. 27, s. 90; 2001, c. 14, s. 95. Definition of "arrangement" 192. (1) In this section, "arrangement" includes (a) an amendment to the articles of a corporation; (b) an amalgamation of two or more corporations; (c) an amalgamation of a body corporate with a corporation that results in an amalgamated corporation subject to this Act; (d) a division of the business carried on by a corporation; (e) a transfer of all or substantially all the property of a corporation to another body corporate in exchange for property, money or securities of the body corporate; (f) an exchange of securities of a corporation for property, money or other securities of the corporation or property, money or securities of another body corporate; (f.1) a going-private transaction or a squeeze-out transaction in relation to a corporation; (g) a liquidation and dissolution of a corporation; and (h) any combination of the foregoing. Where corporation insolvent (2) For the purposes of this section, a corporation is insolvent (a) where it is unable to pay its liabilities as they become due; or (b) where the realizable value of the assets of the corporation are less than the aggregate of its liabilities and stated capital of all classes. Application to court for approval of arrangement (3) Where it is not practicable for a corporation that is not insolvent to effect a fundamental change in the nature of an arrangement under any other provision of this Act, the corporation may apply to a court for an order approving an arrangement proposed by the corporation. Powers of court (4) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing, (a) an order determining the notice to be given to any interested person or dispensing with notice to any person other than the Director; (b) an order appointing counsel, at the expense of the corporation, to represent the interests of the shareholders; (c) an order requiring a corporation to call, hold and conduct a meeting of holders of securities or options or rights to acquire securities in such manner as the court directs; (d) an order permitting a shareholder to dissent under section 190; and (e) an order approving an arrangement as proposed by the corporation or as amended in any manner the court may direct. Notice to Director (5) An applicant for any interim or final order under this section shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. Articles of arrangement (6) After an order referred to in paragraph (4)(e) has been made, articles of arrangement in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable. Certificate of arrangement (7) On receipt of articles of arrangement, the Director shall issue a certificate of arrangement in accordance with section 262. Effect of certificate (8) An arrangement becomes effective on the date shown in the certificate of arrangement. R.S., 1985, c. C-44, s. 192; 1994, c. 24, s. 24; 2001, c. 14, s. 96. PART XVI GOING-PRIVATE TRANSACTIONS AND SQUEEZE-OUT TRANSACTIONS Going-private transactions 193. A corporation may carry out a going-private transaction. However, if there are any applicable provincial securities laws, a corporation may not carry out a going-private transaction unless the corporation complies with those laws. R.S., 1985, c. C-44, s. 193; 2001, c. 14, s. 97. Squeeze-out transactions 194. A corporation may not carry out a squeeze-out transaction unless, in addition to any approval by holders of shares required by or under this Act or the articles of the corporation, the transaction is approved by ordinary resolution of the holders of each class of shares that are affected by the transaction, voting separately, whether or not the shares otherwise carry the right to vote. However, the following do not have the right to vote on the resolution: (a) affiliates of the corporation; and (b) holders of shares that would, following the squeeze-out transaction, be entitled to consideration of greater value or to superior rights or privileges than those available to other holders of shares of the same class. R.S., 1985, c. C-44, s. 194; 2001, c. 14, s. 97. 195. to 205. [Repealed, 2001, c. 14, s. 97] PART XVII COMPULSORY AND COMPELLED ACQUISITIONS Definitions 206. (1) The definitions in this subsection apply in this Part. "dissenting offeree" «pollicité dissident » "dissenting offeree" means, where a take-over bid is made for all the shares of a class of shares, a holder of a share of that class who does not accept the take-over bid and includes a subsequent holder of that share who acquires it from the first mentioned holder; "offer" «pollicitation » "offer" includes an invitation to make an offer. "offeree" «pollicité » "offeree" means a person to whom a take-over bid is made. "offeree corporation" «société pollicitée » "offeree corporation" means a distributing corporation whose shares are the object of a take-over bid. "offeror" «pollicitant » "offeror" means a person, other than an agent, who makes a take-over bid, and includes two or more persons who, directly or indirectly, (a) make take-over bids jointly or in concert; or (b) intend to exercise jointly or in concert voting rights attached to shares for which a take-over bid is made. "share" «action » "share" means a share, with or without voting rights, and includes (a) a security currently convertible into such a share; and (b) currently exercisable options and rights to acquire such a share or such a convertible security. "take-over bid" «offre d’achat visant à la mainmise » "take-over bid" means an offer made by an offeror to shareholders of a distributing corporation at approximately the same time to acquire all of the shares of a class of issued shares, and includes an offer made by a distributing corporation to repurchase all of the shares of a class of its shares. Right to acquire (2) If within one hundred and twenty days after the date of a take-over bid the bid is accepted by the holders of not less than ninety per cent of the shares of any class of shares to which the take-over bid relates, other than shares held at the date of the take-over bid by or on behalf of the offeror or an affiliate or associate of the offeror, the offeror is entitled, on complying with this section, to acquire the shares held by the dissenting offerees. Notice (3) An offeror may acquire shares held by a dissenting offeree by sending by registered mail within sixty days after the date of termination of the take-over bid and in any event within one hundred and eighty days after the date of the take-over bid, an offeror’s notice to each dissenting offeree and to the Director stating that (a) the offerees holding not less than ninety per cent of the shares to which the bid relates accepted the take-over bid; (b) the offeror is bound to take up and pay for or has taken up and paid for the shares of the offerees who accepted the take-over bid; (c) a dissenting offeree is required to elect (i) to transfer their shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or (ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within twenty days after receiving the offeror’s notice; (d) a dissenting offeree who does not notify the offeror in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the offeror on the same terms that the offeror acquired the shares from the offerees who accepted the take-over bid; and (e) a dissenting offeree must send their shares to which the take-over bid relates to the offeree corporation within twenty days after receiving the offeror’s notice. Notice of adverse claim (4) Concurrently with sending the offeror’s notice under subsection (3), the offeror shall send to the offeree corporation a notice of adverse claim in accordance with section 78 with respect to each share held by a dissenting offeree. Share certificate (5) A dissenting offeree to whom an offeror’s notice is sent under subsection (3) shall, within twenty days after receiving the notice, (a) send the share certificates of the class of shares to which the take-over bid relates to the offeree corporation; and (b) elect (i) to transfer the shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or (ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within those twenty days. Deemed election (5.1) A dissenting offeree who does not notify the offeror in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the offeror on the same terms on which the offeror acquired the shares from the offerees who accepted the take-over bid. Payment (6) Within twenty days after the offeror sends an offeror’s notice under subsection (3), the offeror shall pay or transfer to the offeree corporation the amount of money or other consideration that the offeror would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (5)(b)(i). Consideration (7) The offeree corporation is deemed to hold in trust for the dissenting shareholders the money or other consideration it receives under subsection (6), and the offeree corporation shall deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board, and shall place the other consideration in the custody of a bank or such other body corporate. When corporation is offeror (7.1) A corporation that is an offeror making a take-over bid to repurchase all of the shares of a class of its shares is deemed to hold in trust for the dissenting shareholders the money and other consideration that it would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (5)(b)(i), and the corporation shall, within twenty days after a notice is sent under subsection (3), deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board, and shall place the other consideration in the custody of a bank or such other body corporate. Duty of offeree corporation (8) Within thirty days after the offeror sends a notice under subsection (3), the offeree corporation shall (a) if the payment or transfer required by subsection (6) is made, issue to the offeror a share certificate in respect of the shares that were held by dissenting offerees; (b) give to each dissenting offeree who elects to accept the take-over bid terms under subparagraph (5)(b)(i) and who sends share certificates as required by paragraph (5)(a) the money or other consideration to which the offeree is entitled, disregarding fractional shares, which may be paid for in money; and (c) if the payment or transfer required by subsection (6) is made and the money or other consideration is deposited as required by subsection (7) or (7.1), send to each dissenting shareholder who has not sent share certificates as required by paragraph (5)(a) a notice stating that (i) the dissenting shareholder’s shares have been cancelled, (ii) the offeree corporation or some designated person holds in trust for the dissenting shareholder the money or other consideration to which that shareholder is entitled as payment for or in exchange for the shares, and (iii) the offeree corporation will, subject to subsections (9) to (18), send that money or other consideration to that shareholder without delay after receiving the shares. Application to court (9) If a dissenting offeree has elected to demand payment of the fair value of the shares under subparagraph (5)(b)(ii), the offeror may, within twenty days after it has paid the money or transferred the other consideration under subsection (6), apply to a court to fix the fair value of the shares of that dissenting offeree. Idem (10) If an offeror fails to apply to a court under subsection (9), a dissenting offeree may apply to a court for the same purpose within a further period of twenty days. Status of dissenter if no court application (11) Where no application is made to a court under subsection (10) within the period set out in that subsection, a dissenting offeree is deemed to have elected to transfer their shares to the offeror on the same terms that the offeror acquired the shares from the offerees who accepted the take-over bid. Venue (12) An application under subsection (9) or (10) shall be made to a court having jurisdiction in the place where the corporation has its registered office or in the province where the dissenting offeree resides if the corporation carries on business in that province. No security for costs (13) A dissenting offeree is not required to give security for costs in an application made under subsection (9) or (10). Parties (14) On an application under subsection (9) or (10) (a) all dissenting offerees referred to in subparagraph (5)(b)(ii) whose shares have not been acquired by the offeror shall be joined as parties and are bound by the decision of the court; and (b) the offeror shall notify each affected dissenting offeree of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. Powers of court (15) On an application to a court under subsection (9) or (10), the court may determine whether any other person is a dissenting offeree who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting offerees. Appraisers (16) A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of a dissenting offeree. Final order (17) The final order of the court shall be made against the offeror in favour of each dissenting offeree and for the amount for the shares as fixed by the court. Additional powers (18) In connection with proceedings under this section, a court may make any order it thinks fit and, without limiting the generality of the foregoing, it may (a) fix the amount of money or other consideration that is required to be held in trust under subsection (7) or (7.1); (b) order that that money or other consideration be held in trust by a person other than the offeree corporation; (c) allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date they send or deliver their share certificates under subsection (5) until the date of payment; and (d) order that any money payable to a shareholder who cannot be found be paid to the Receiver General and subsection 227(3) applies in respect thereof. R.S., 1985, c. C-44, s. 206; 2001, c. 14, ss. 99, 135(E). Obligation to acquire shares 206.1 (1) If a shareholder holding shares of a distributing corporation does not receive an offeror’s notice under subsection 206(3), the shareholder may (a) within ninety days after the date of termination of the take-over bid, or (b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of (i) the date of termination of the take-over bid, and (ii) the date on which the shareholder learned of the take-over bid, require the offeror to acquire those shares. Conditions (2) If a shareholder requires the offeror to acquire shares under subsection (1), the offeror shall acquire the shares on the same terms under which the offeror acquired or will acquire the shares of the offerees who accepted the take-over bid. 2001, c. 14, s. 100. PART XVIII LIQUIDATION AND DISSOLUTION Definition of "court" 207. In this Part, "court" means a court having jurisdiction in the place where the corporation has its registered office. 1974-75-76, c. 33, s. 200. Application of Part 208. (1) This Part, other than sections 209 and 212, does not apply to a corporation that is an insolvent person or a bankrupt as those terms are defined in subsection 2(1) of the Bankruptcy and Insolvency Act. Staying proceedings (2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve a corporation shall be stayed if the corporation is at any time found, in a proceeding under the Bankruptcy and Insolvency Act, to be an insolvent person as defined in subsection 2(1) of that Act. R.S., 1985, c. C-44, s. 208; 1992, c. 27, s. 90; 2001, c. 14, s. 101. Revival 209. (1) Where a body corporate is dissolved under this Part or under section 268 of this Act or section 261 of chapter 33 of the Statutes of Canada, 1974-75-76, any interested person may apply to the Director to have the body corporate revived as a corporation under this Act. Articles of revival (2) Articles of revival in the form that the Director fixes shall be sent to the Director. Certificate of revival (3) On receipt of articles of revival, the Director shall issue a certificate of revival in accordance with section 262, if (a) the body corporate has fulfilled all conditions precedent that the Director considers reasonable; and (b) there is no valid reason for refusing to issue the certificate. Date of revival (3.1) A body corporate is revived as a corporation under this Act on the date shown on the certificate of revival. Rights preserved (4) Subject to any reasonable terms that may be imposed by the Director, to the rights acquired by any person after its dissolution and to any changes to the internal affairs of the corporation after its dissolution, the revived corporation is, in the same manner and to the same extent as if it had not been dissolved, (a) restored to its previous position in law, including the restoration of any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and (b) liable for the obligations that it would have had if it had not been dissolved whether they arise before its dissolution or after its dissolution and before its revival. Legal actions (5) Any legal action respecting the affairs of a revived corporation taken between the time of its dissolution and its revival is valid and effective. Definition of "interested person" (6) In this section, "interested person" includes (a) a shareholder, a director, an officer, an employee and a creditor of the dissolved corporation; (b) a person who has a contractual relationship with the dissolved corporation; (c) a person who, although at the time of dissolution of the corporation was not a person described in paragraph (a), would be such a person if a certificate of revival is issued under this section; and (d) a trustee in bankruptcy for the dissolved corporation. R.S., 1985, c. C-44, s. 209; 2001, c. 14, s. 102. Dissolution before commencing business 210. (1) A corporation that has not issued any shares may be dissolved at any time by resolution of all the directors. Dissolution if no property (2) A corporation that has no property and no liabilities may be dissolved by special resolution of the shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote. Dissolution where property disposed of (3) A corporation that has property or liabilities or both may be dissolved by special resolution of the shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote, if (a) by the special resolution or resolutions the shareholders authorize the directors to cause the corporation to distribute any property and discharge any liabilities; and (b) the corporation has distributed any property and discharged any liabilities before it sends articles of dissolution to the Director pursuant to subsection (4). Articles of dissolution (4) Articles of dissolution in the form that the Director fixes shall be sent to the Director. Certificate of dissolution (5) On receipt of articles of dissolution, the Director shall issue a certificate of dissolution in accordance with section 262. Effect of certificate (6) The corporation ceases to exist on the date shown in the certificate of dissolution. R.S., 1985, c. C-44, s. 210; 2001, c. 14, s. 103. Proposing liquidation and dissolution 211. (1) The directors may propose, or a shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 137, make a proposal for, the voluntary liquidation and dissolution of a corporation. Notice of meeting (2) Notice of any meeting of shareholders at which voluntary liquidation and dissolution is to be proposed shall set out the terms thereof. Shareholders resolution (3) A corporation may liquidate and dissolve by special resolution of the shareholders or, where the corporation has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote. Statement of intent to dissolve (4) A statement of intent to dissolve in the form that the Director fixes shall be sent to the Director. Certificate of intent to dissolve (5) On receipt of a statement of intent to dissolve, the Director shall issue a certificate of intent to dissolve in accordance with section 262. Effect of certificate (6) On issue of a certificate of intent to dissolve, the corporation shall cease to carry on business except to the extent necessary for the liquidation, but its corporate existence continues until the Director issues a certificate of dissolution. Liquidation (7) After issue of a certificate of intent to dissolve, the corporation shall (a) immediately cause notice thereof to be sent to each known creditor of the corporation; (b) without delay take reasonable steps to give notice of it in each province in Canada where the corporation was carrying on business at the time it sent the statement of intent to dissolve to the Director; (c) proceed to collect its property, to dispose of properties that are not to be distributed in kind to its shareholders, to discharge all its obligations and to do all other acts required to liquidate its business; and (d) after giving the notice required under paragraphs (a) and (b) and adequately providing for the payment or discharge of all its obligations, distribute its remaining property, either in money or in kind, among its shareholders according to their respective rights. Supervision by court (8) The Director or any interested person may, at any time during the liquidation of a corporation, apply to a court for an order that the liquidation be continued under the supervision of the court as provided in this Part, and on such application the court may so order and make any further order it thinks fit. Notice to Director (9) An applicant under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel. Revocation (10) At any time after issue of a certificate of intent to dissolve and before issue of a certificate of dissolution, a certificate of intent to dissolve may be revoked by sending to the Director a statement of revocation of intent to dissolve in the form that the Director fixes, if such revocation is approved in the same manner as the resolution under subsection (3). Certificate of revocation of intent to dissolve (11) On receipt of a statement of revocation of intent to dissolve, the Director shall issue a certificate of revocation of intent to dissolve in accordance with section 262. Effect of certificate (12) On the date shown in the certificate of revocation of intent to dissolve, the revocation is effective and the corporation may continue to carry on its business or businesses. Right to dissolve (13) If a certificate of intent to dissolve has not been revoked and the corporation has complied with subsection (7), the corporation shall prepare articles of dissolution. Articles of dissolution (14) Articles of dissolution in the form that the Director fixes shall be sent to the Director. Certificate of dissolution (15) On receipt of articles of dissolution, the Director shall issue a certificate of dissolution in accordance with section 262. Effect of certificate (16) The corporation ceases to exist on the date shown in the certificate of dissolution. R.S., 1985, c. C-44, s. 211; 2001, c. 14, s. 104. Dissolution by Director 212. (1) Subject to subsections (2) and (3), the Director may (a) dissolve a corporation by issuing a certificate of dissolution under this section if the corporation (i) has not commenced business within three years after the date shown in its certificate of incorporation, (ii) has not carried on its business for three consecutive years, (iii) is in default for a period of one year in sending to the Director any fee, notice or document required by this Act, or (iv) does not have any directors or is in the situation described in subsection 109(4); or (b) apply to a court for an order dissolving the corporation, in which case section 217 applies. Publication (2) The Director shall not dissolve a corporation under this section until the Director has (a) given one hundred and twenty days notice of the decision to dissolve the corporation to the corporation and to each director thereof; and (b) published notice of that decision in a publication generally available to the public. Certificate of dissolution (3) Unless cause to the contrary has been shown or an order has been made by a court under section 246, the Director may, after the expiration of the period referred to in subsection (2), issue a certificate of dissolution in the form that the Director fixes. Exception — non-payment of incorporation fee (3.1) Despite anything in this section, the Director may dissolve a corporation by issuing a certificate of dissolution if the required fee for the issuance of a certificate of incorporation has not been paid. Effect of certificate (4) The corporation ceases to exist on the date shown in the certificate of dissolution. R.S., 1985, c. C-44, s. 212; 1994, c. 24, s. 25; 2001, c. 14, ss. 105, 135(E). Grounds for dissolution 213. (1) The Director or any interested person may apply to a court for an order dissolving a corporation if the corporation has (a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings of shareholders; (b) contravened subsection 16(2) or section 21, 157 or 159; or (c) procured any certificate under this Act by misrepresentation. Notice to Director (2) An applicant under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel. Dissolution order (3) On an application under this section or section 212, the court may order that the corporation be dissolved or that the corporation be liquidated and dissolved under the supervision of the court, and the court may make any other order it thinks fit. Certificate (4) On receipt of an order under this section, section 212 or 214, the Director shall (a) if the order is to dissolve the corporation, issue a certificate of dissolution in the form that the Director fixes; or (b) if the order is to liquidate and dissolve the corporation under the supervision of the court, issue a certificate of intent to dissolve in the form that the Director fixes and publish notice of the order in a publication generally available to the public. Effect of certificate (5) The corporation ceases to exist on the date shown in the certificate of dissolution. R.S., 1985, c. C-44, s. 213; 2001, c. 14, s. 106. Further grounds 214. (1) A court may order the liquidation and dissolution of a corporation or any of its affiliated corporations on the application of a shareholder, (a) if the court is satisfied that in respect of a corporation or any of its affiliates (i) any act or omission of the corporation or any of its affiliates effects a result, (ii) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or (iii) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer; or (b) if the court is satisfied that (i) a unanimous shareholder agreement entitles a complaining shareholder to demand dissolution of the corporation after the occurrence of a specified event and that event has occurred, or (ii) it is just and equitable that the corporation should be liquidated and dissolved. Alternative order (2) On an application under this section, a court may make such order under this section or section 241 as it thinks fit. Application of s. 242 (3) Section 242 applies to an application under this section. R.S., 1985, c. C-44, s. 214; 2001, c. 14, s. 107(F). Application for supervision 215. (1) An application to a court to supervise a voluntary liquidation and dissolution under subsection 211(8) shall state the reasons, verified by an affidavit of the applicant, why the court should supervise the liquidation and dissolution. Court supervision (2) If a court makes an order applied for under subsection 211(8), the liquidation and dissolution of the corporation shall continue under the supervision of the court in accordance with this Act. 1974-75-76, c. 33, s. 208. Application to court 216. (1) An application to a court under subsection 214(1) shall state the reasons, verified by an affidavit of the applicant, why the corporation should be liquidated and dissolved. Show cause order (2) On an application under subsection 214(1), the court may make an order requiring the corporation and any person having an interest in the corporation or claim against it to show cause, at a time and place specified in the order, within four weeks after the date of the order, why the corporation should not be liquidated and dissolved. Powers of court (3) On an application under subsection 214(1), the court may order the directors and officers of the corporation to furnish the court with all material information known to or reasonably ascertainable by them, including (a) financial statements of the corporation; (b) the name and address of each shareholder of the corporation; and (c) the name and address of each known creditor or claimant, including any creditor or claimant with unliquidated, future or contingent claims, and any person with whom the corporation has a contract. Publication (4) A copy of an order made under subsection (2) shall be (a) published as directed in the order, at least once in each week before the time appointed for the hearing, in a newspaper published or distributed in the place where the corporation has its registered office; and (b) served on the Director and each person named in the order. Person responsible (5) Publication and service of an order under this section shall be effected by the corporation or by such other person and in such manner as the court may order. R.S., 1985, c. C-44, s. 216; 1999, c. 31, s. 64(E). Powers of court 217. In connection with the dissolution or the liquidation and dissolution of a corporation, the court may, if it is satisfied that the corporation is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order to liquidate; (b) an order appointing a liquidator, with or without security, fixing the liquidator’s remuneration and replacing a liquidator; (c) an order appointing inspectors or referees, specifying their powers, fixing their remuneration and replacing inspectors or referees; (d) an order determining the notice to be given to any interested person, or dispensing with notice to any person; (e) an order determining the validity of any claims made against the corporation; (f) an order, at any stage of the proceedings, restraining the directors and officers from (i) exercising any of their powers, or (ii) collecting or receiving any debt or other property of the corporation, and from paying out or transferring any property of the corporation, except as permitted by the court; (g) an order determining and enforcing the duty or liability of any present or former director, officer or shareholder (i) to the corporation, or (ii) for an obligation of the corporation; (h) an order approving the payment, satisfaction or compromise of claims against the corporation and the retention of assets for such purpose, and determining the adequacy of provisions for the payment or discharge of obligations of the corporation, whether liquidated, unliquidated, future or contingent; (i) an order disposing of or destroying the documents and records of the corporation; (j) on the application of a creditor, the inspectors or the liquidator, an order giving directions on any matter arising in the liquidation; (k) after notice has been given to all interested parties, an order relieving a liquidator from any omission or default on such terms as the court thinks fit and confirming any act of the liquidator; (l) subject to section 223, an order approving any proposed interim or final distribution to shareholders in money or in property; (m) an order disposing of any property belonging to creditors or shareholders who cannot be found; (n) on the application of any director, officer, security holder, creditor or the liquidator, (i) an order staying the liquidation on such terms and conditions as the court thinks fit, (ii) an order continuing or discontinuing the liquidation proceedings, or (iii) an order to the liquidator to restore to the corporation all its remaining property; and (o) after the liquidator has rendered a final account to the court, an order dissolving the corporation. R.S., 1985, c. C-44, s. 217; 2001, c. 14, ss. 108, 135(E). Effect of order 218. The liquidation of a corporation commences when a court makes an order therefor. 1974-75-76, c. 33, s. 211. Cessation of business and powers 219. (1) If a court makes an order for liquidation of a corporation, (a) the corporation continues in existence but shall cease to carry on business, except the business that is, in the opinion of the liquidator, required for an orderly liquidation; and (b) the powers of the directors and shareholders cease and vest in the liquidator, except as specifically authorized by the court. Delegation by liquidator (2) The liquidator may delegate any powers vested in the liquidator by paragraph (1)(b) to the directors or shareholders. R.S., 1985, c. C-44, s. 219; 2001, c. 14, s. 135(E). Appointment of liquidator 220. (1) When making an order for the liquidation of a corporation or at any time thereafter, the court may appoint any person, including a director, an officer or a shareholder of the corporation or any other body corporate, as liquidator of the corporation. Vacancy (2) Where an order for the liquidation of a corporation has been made and the office of liquidator is or becomes vacant, the property of the corporation is under the control of the court until the office of liquidator is filled. 1974-75-76, c. 33, s. 213; 1978-79, c. 9, s. 67. Duties of liquidator 221. A liquidator shall (a) forthwith after appointment give notice thereof to the Director and to each claimant and creditor known to the liquidator; (b) without delay publish notice by insertion once a week for two consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and take reasonable steps to give notice of the appointment in each province where the corporation carries on business, requiring any person (i) indebted to the corporation, to render an account and pay to the liquidator at the time and place specified any amount owing, (ii) possessing property of the corporation, to deliver it to the liquidator at the time and place specified, and (iii) having a claim against the corporation, whether liquidated, unliquidated, future or contingent, to present particulars thereof in writing to the liquidator not later than two months after the first publication of the notice; (c) take into custody and control the property of the corporation; (d) open and maintain a trust account for the moneys of the corporation; (e) keep accounts of the moneys of the corporation received and paid out by him; (f) maintain separate lists of the shareholders, creditors and other persons having claims against the corporation; (g) if at any time the liquidator determines that the corporation is unable to pay or adequately provide for the discharge of its obligations, apply to the court for directions; (h) deliver to the court and to the Director, at least once in every twelve month period after appointment or more often as the court may require, financial statements of the corporation in the form required by section 155 or in such other form as the liquidator may think proper or as the court may require; and (i) after the final accounts are approved by the court, distribute any remaining property of the corporation among the shareholders according to their respective rights. R.S., 1985, c. C-44, s. 221; 2001, c. 14, ss. 109, 135(E). Powers of liquidator 222. (1) A liquidator may (a) retain lawyers, accountants, engineers, appraisers and other professional advisers; (b) bring, defend or take part in any civil, criminal or administrative action or proceeding in the name and on behalf of the corporation; (c) carry on the business of the corporation as required for an orderly liquidation; (d) sell by public auction or private sale any property of the corporation; (e) do all acts and execute any documents in the name and on behalf of the corporation; (f) borrow money on the security of the property of the corporation; (g) settle or compromise any claims by or against the corporation; and (h) do all other things necessary for the liquidation of the corporation and distribution of its property. Due diligence (2) A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on (a) financial statements of the corporation represented to the liquidator by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. Application for examination (3) If a liquidator has reason to believe that any person has in their possession or under their control, or has concealed, withheld or misappropriated any property of the corporation, the liquidator may apply to the court for an order requiring that person to appear before the court at the time and place designated in the order and to be examined. Power of court (4) If the examination referred to in subsection (3) discloses that a person has concealed, withheld or misappropriated property of the corporation, the court may order that person to restore it or pay compensation to the liquidator. R.S., 1985, c. C-44, s. 222; 2001, c. 14, ss. 110, 135(E). Costs of liquidation 223. (1) A liquidator shall pay the costs of liquidation out of the property of the corporation and shall pay or make adequate provision for all claims against the corporation. Final accounts (2) Within one year after appointment, and after paying or making adequate provision for all claims against the corporation, the liquidator shall apply to the court (a) for approval of the final accounts and for an order permitting the liquidator to distribute in money or in kind the remaining property of the corporation to its shareholders according to their respective rights; or (b) for an extension of time, setting out the reasons therefor. Shareholder application (3) If a liquidator fails to make the application required by subsection (2), a shareholder of the corporation may apply to the court for an order for the liquidator to show cause why a final accounting and distribution should not be made. Publication (4) A liquidator shall give notice of their intention to make an application under subsection (2) to the Director, to each inspector appointed under section 217, to each shareholder and to any person who provided a security or fidelity bond for the liquidation, and shall publish the notice in a newspaper published or distributed in the place where the corporation has its registered office, or as otherwise directed by the court. Final order (5) If the court approves the final accounts rendered by a liquidator, the court shall make an order (a) directing the Director to issue a certificate of dissolution; (b) directing the custody or disposal of the documents and records of the corporation; and (c) subject to subsection (6), discharging the liquidator. Delivery of order (6) The liquidator shall forthwith send a certified copy of the order referred to in subsection (5) to the Director. Certificate of dissolution (7) On receipt of the order referred to in subsection (5), the Director shall issue a certificate of dissolution in accordance with section 262. Effect of certificate (8) The corporation ceases to exist on the date shown in the certificate of dissolution. R.S., 1985, c. C-44, s. 223; 2001, c. 14, ss. 111(E), 135(E). Right to distribution in money 224. (1) If in the course of liquidation of a corporation the shareholders resolve or the liquidator proposes to (a) exchange all or substantially all the property of the corporation for securities of another body corporate that are to be distributed to the shareholders, or (b) distribute all or part of the property of the corporation to the shareholders in kind, a shareholder may apply to the court for an order requiring the distribution of the property of the corporation to be in money. Powers of court (2) On an application under subsection (1), the court may order (a) all the property of the corporation to be converted into and distributed in money; or (b) the claims of any shareholder applying under this section to be satisfied by a distribution in money, in which case subsections 190(20) to (22) apply. 1974-75-76, c. 33, s. 217. Custody of records 225. (1) A person who has been granted custody of the documents and records of a dissolved corporation remains liable to produce such documents and records for six years following the date of its dissolution or until the expiration of such other shorter period as may be ordered under subsection 223(5). Offence (2) A person who, without reasonable cause, contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. 1974-75-76, c. 33, s. 218. Definition of "shareholder" 226. (1) In this section, "shareholder" includes the heirs and personal representatives of a shareholder. Continuation of actions (2) Notwithstanding the dissolution of a body corporate under this Act, (a) a civil, criminal or administrative action or proceeding commenced by or against the body corporate before its dissolution may be continued as if the body corporate had not been dissolved; (b) a civil, criminal or administrative action or proceeding may be brought against the body corporate within two years after its dissolution as if the body corporate had not been dissolved; and (c) any property that would have been available to satisfy any judgment or order if the body corporate had not been dissolved remains available for such purpose. Service (3) Service of a document on a corporation after its dissolution may be effected by serving the document on a person shown in the last notice filed under section 106 or 113. Idem (3.1) Service of a document on a company to which the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applied that has been dissolved by subsection 261(8) of the Canada Business Corporations Act, chapter 33 of the Statutes of Canada, 1974-75-76 and chapter 9 of the Statutes of Canada, 1978-79, may be effected by serving the document on a person shown as a director in the last annual summary filed by the company pursuant to the Canada Corporations Act. Reimbursement (4) Notwithstanding the dissolution of a body corporate under this Act, a shareholder to whom any of its property has been distributed is liable to any person claiming under subsection (2) to the extent of the amount received by that shareholder on such distribution, and an action to enforce such liability may be brought within two years after the date of the dissolution of the body corporate. Representative action (5) A court may order an action referred to in subsection (4) to be brought against the persons who were shareholders as a class, subject to such conditions as the court thinks fit and, if the plaintiff establishes a claim, the court may refer the proceedings to a referee or other officer of the court who may (a) add as a party to the proceedings each person who was a shareholder found by the plaintiff; (b) determine, subject to subsection (4), the amount that each person who was a shareholder shall contribute towards satisfaction of the plaintiff’s claim; and (c) direct payment of the amounts so determined. R.S., 1985, c. C-44, s. 226; 1992, c. 1, s. 57; 2001, c. 14, ss. 112, 135(E). Unknown claimants 227. (1) On the dissolution of a body corporate under this Act, the portion of the property distributable to a creditor or shareholder who cannot be found shall be converted into money and paid to the Receiver General. Constructive satisfaction (2) A payment under subsection (1) is deemed to be in satisfaction of a debt or claim of such creditor or shareholder. Recovery (3) A person who establishes an entitlement to any moneys paid to the Receiver General under this Act shall be paid by the Receiver General an equivalent amount out of the Consolidated Revenue Fund. R.S., 1985, c. C-44, s. 227; 2001, c. 14, s. 135(E). Vesting in Crown 228. (1) Subject to subsection 226(2) and section 227, property of a body corporate that has not been disposed of at the date of its dissolution under this Act vests in Her Majesty in right of Canada. Return of property on revival (2) If a body corporate is revived as a corporation under section 209, any property, other than money, that vested in Her Majesty pursuant to subsection (1), that has not been disposed of shall be returned to the corporation and there shall be paid to the corporation out of the Consolidated Revenue Fund (a) an amount equal to any money received by Her Majesty pursuant to subsection (1); and (b) where property other than money vested in Her Majesty pursuant to subsection (1) and that property has been disposed of, an amount equal to the lesser of (i) the value of any such property at the date it vested in Her Majesty, and (ii) the amount realized by Her Majesty from the disposition of that property. 1974-75-76, c. 33, s. 221; 1978-79, c. 9, s. 70. PART XIX INVESTIGATION Investigation 229. (1) A security holder or the Director may apply, ex parte or on such notice as the court may require, to a court having jurisdiction in the place where the corporation has its registered office for an order directing an investigation to be made of the corporation and any of its affiliated corporations. Grounds (2) If, on an application under subsection (1), it appears to the court that (a) the business of the corporation or any of its affiliates is or has been carried on with intent to defraud any person, (b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the powers of the directors are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of a security holder, (c) the corporation or any of its affiliates was formed for a fraudulent or unlawful purpose or is to be dissolved for a fraudulent or unlawful purpose, or (d) persons concerned with the formation, business or affairs of the corporation or any of its affiliates have in connection therewith acted fraudulently or dishonestly, the court may order an investigation to be made of the corporation and any of its affiliated corporations. Notice to Director (3) A security holder who makes an application under subsection (1) shall give the Director reasonable notice thereof and the Director is entitled to appear and be heard in person or by counsel. No security for costs (4) An applicant under this section is not required to give security for costs. Hearings in camera (5) An ex parte application under this section shall be heard in camera. Consent to publish proceedings required (6) No person may publish anything relating to ex parte proceedings under this section except with the authorization of the court or the written consent of the corporation being investigated. R.S., 1985, c. C-44, s. 229; 2001, c. 14, ss. 113(F), 135(E). Powers of court 230. (1) In connection with an investigation under this Part, the court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order to investigate; (b) an order appointing an inspector, who may be the Director, fixing the remuneration of an inspector, and replacing an inspector; (c) an order determining the notice to be given to any interested person, or dispensing with notice to any person; (d) an order authorizing an inspector to enter any premises in which the court is satisfied there might be relevant information, and to examine any thing and make copies of any document or record found on the premises; (e) an order requiring any person to produce documents or records to the inspector; (f) an order authorizing an inspector to conduct a hearing, administer oaths, and examine any person on oath, and prescribing rules for the conduct of the hearing; (g) an order requiring any person to attend a hearing conducted by an inspector and to give evidence on oath; (h) an order giving directions to an inspector or any interested person on any matter arising in the investigation; (i) an order requiring an inspector to make an interim or final report to the court; (j) an order determining whether a report of an inspector should be published and, if so, ordering the Director to publish the report in whole or in part or to send copies to any person the court designates; (k) an order requiring an inspector to discontinue an investigation; and (l) an order requiring the corporation to pay the costs of the investigation. Copy of report (2) An inspector shall send to the Director a copy of every report made by the inspector under this Part. 1974-75-76, c. 33, s. 223; 1978-79, c. 9, s. 72. Power of inspector 231. (1) An inspector under this Part has the powers set out in the order appointing him. Exchange of information (2) In addition to the powers set out in the order appointing him, an inspector appointed to investigate a corporation may furnish to, or exchange information and otherwise cooperate with, any public official in Canada or elsewhere who is authorized to exercise investigatory powers and who is investigating, in respect of the corporation, any allegation of improper conduct that is the same as or similar to the conduct described in subsection 229(2). Court order (3) An inspector shall on request produce to an interested person a copy of any order made under subsection 230(1). 1974-75-76, c. 33, s. 224; 1978-79, c. 9, s. 73. Hearing in camera 232. (1) Any interested person may apply to the court for an order that a hearing conducted by an inspector under this Part be heard in camera and for directions on any matter arising in the investigation. Right to counsel (2) A person whose conduct is being investigated or who is being examined at a hearing conducted by an inspector under this Part has a right to be represented by counsel. 1974-75-76, c. 33, s. 225. Criminating statements 233. No person is excused from attending and giving evidence and producing documents and records to an inspector under this Part by reason only that the evidence tends to criminate that person or subject that person to any proceeding or penalty, but no such evidence shall be used or is receivable against that person in any proceeding thereafter instituted against that person under an Act of Parliament, other than a prosecution under section 132 of the Criminal Code for perjury in giving the evidence or a prosecution under section 136 of the Criminal Code in respect of the evidence. R.S., 1985, c. C-44, s. 233; R.S., 1985, c. 27 (1st Supp.), s. 187. Absolute privilege (defamation) 234. Any oral or written statement or report made by an inspector or any other person in an investigation under this Part has absolute privilege. 1974-75-76, c. 33, s. 227. Information respecting ownership and control 235. (1) If the Director is satisfied that, for the purposes of Part XI, XIII or XVII, or for the purposes of enforcing any regulation made under section 174, there is reason to inquire into the ownership or control of a security of a corporation or any of its affiliates, the Director may require any person that the Director reasonably believes has or has had an interest in the security or acts or has acted on behalf of a person with such an interest to report to him or her or to any person the Director designates (a) information that such person has or can reasonably be expected to obtain as to present and past interests in the security; and (b) the names and addresses of the persons so interested and of any person who acts or has acted in relation to the security on behalf of the persons so interested. Constructive interest in securities (2) For the purposes of subsection (1), a person is deemed to have an interest in a security if (a) the person has a right to vote or to acquire or dispose of the security or any interest therein; (b) the person’s consent is necessary for the exercise of the rights or privileges of any other person interested in the security; or (c) any other person interested in the security can be required or is accustomed to exercise rights or privileges attached to the security in accordance with the person’s instructions. Publication (3) The Director shall publish in a publication generally available to the public the particulars of information obtained by the Director under this section, if the particulars (a) are required to be disclosed by this Act or the regulations; and (b) have not previously been so disclosed. Offence (4) A person who fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. Officers, etc., of bodies corporate (5) Where a body corporate commits an offence under subsection (4), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. R.S., 1985, c. C-44, s. 235; 2001, c. 14, ss. 114, 135(E). Solicitor-client privilege 236. Nothing in this Part shall be construed as affecting solicitor-client privilege. R.S., 1985, c. C-44, s. 236; 2001, c. 14, s. 135(E). Inquiries 237. The Director may make inquiries of any person relating to compliance with this Act. 1974-75-76, c. 33, s. 230. PART XIX.1 APPORTIONING AWARD OF DAMAGES Interpretation and Application Definitions 237.1 The definitions in this section apply in this Part. "financial interest" «intérêt financier » "financial interest" , with respect to a corporation, includes (a) a security; (b) a title to or an interest in capital, assets, property, profits, earnings or royalties; (c) an option or other interest in, or a subscription to, a security; (d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets; (e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the corporation; (f) a profit-sharing agreement or certificate; (g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty; (h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province; (i) an investment contract; and (j) anything that is prescribed to be a financial interest. "financial loss" «perte financière » "financial loss" means a financial loss arising out of an error, omission or misstatement in financial information concerning a corporation that is required under this Act or the regulations. "third party" «Version anglaise seulement » "third party" includes any subsequent party that is joined in proceedings before a court. 2001, c. 14, s. 115. Application of Part 237.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss. Non-application of Part (2) This Part does not apply to an award of damages to any of the following plaintiffs: (a) Her Majesty in right of Canada or of a province; (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments; (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or (d) an unsecured creditor in respect of goods or services that the creditor provided to a corporation. 2001, c. 14, s. 115. Apportionment of Damages Degree of responsibility 237.3 (1) Subject to this section and sections 237.4 to 237.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss. Uncollectable amounts (2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable. Reallocation (3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss. Maximum amount (4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party. 2001, c. 14, s. 115. Exception — fraud 237.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly. Contribution (2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss. 2001, c. 14, s. 115. Joint and Several, or Solidary, Liability Individual or personal body corporate 237.5 (1) Defendants and third parties referred to in subsection 237.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who (a) had a financial interest in a corporation on the day that an error, omission or misstatement in financial information concerning the corporation occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and (b) has established that the value of the plaintiff’s total financial interest in the corporation was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph ( a). Exception (1.1) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate. Interpretation (2) For the purposes of this section, (a) a personal body corporate is a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual, or by a group of individuals who are connected by marriage, common-law partnership or any legal parent-child relationship or are connected indirectly by a combination of those relationships, whether or not the individuals through whom they are connected are members of the group; and (b) a common-law partnership is a relationship between two persons who are cohabiting with each other in a conjugal relationship and have done so for a period of at least one year. 2001, c. 14, s. 115; 2005, c. 33, s. 5. Equitable grounds 237.6 (1) If the value of the plaintiff’s total financial interest referred to in subsection 237.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so. Factors (2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable. Statutory Instruments Act (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette. 2001, c. 14, s. 115. Value of security 237.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 237.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3), (a) the closing price of that class of security; (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or (c) if the security was not traded, the average of the bid and ask prices of that class of security. Court may adjust value (2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so. Valuation day (3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired. Definition of "organized market" (4) In this section, "organized market" means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public. 2001, c. 14, s. 115. Court determines value 237.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market. Factors (2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1). Statutory Instruments Act (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette. 2001, c. 14, s. 115. Application to determine value 237.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff’s financial interest for the purpose of subsection 237.5(1). 2001, c. 14, s. 115. PART XX REMEDIES, OFFENCES AND PUNISHMENT Definitions 238. In this Part, "action" «action » "action" means an action under this Act; "complainant" «plaignant » "complainant" means (a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates, (b) a director or an officer or a former director or officer of a corporation or any of its affiliates, (c) the Director, or (d) any other person who, in the discretion of a court, is a proper person to make an application under this Part. 1974-75-76, c. 33, s. 231. Commencing derivative action 239. (1) Subject to subsection (2), a complainant may apply to a court for leave to bring an action in the name and on behalf of a corporation or any of its subsidiaries, or intervene in an action to which any such body corporate is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the body corporate. Conditions precedent (2) No action may be brought and no intervention in an action may be made under subsection (1) unless the court is satisfied that (a) the complainant has given notice to the directors of the corporation or its subsidiary of the complainant’s intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court, if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action; (b) the complainant is acting in good faith; and (c) it appears to be in the interests of the corporation or its subsidiary that the action be brought, prosecuted, defended or discontinued. R.S., 1985, c. C-44, s. 239; 2001, c. 14, s. 116. Powers of court 240. In connection with an action brought or intervened in under section 239, the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order authorizing the complainant or any other person to control the conduct of the action; (b) an order giving directions for the conduct of the action; (c) an order directing that any amount adjudged payable by a defendant in the action shall be paid, in whole or in part, directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary; and (d) an order requiring the corporation or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action. 1974-75-76, c. 33, s. 233. Application to court re oppression 241. (1) A complainant may apply to a court for an order under this section. Grounds (2) If, on an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates (a) any act or omission of the corporation or any of its affiliates effects a result, (b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or (c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of. Powers of court (3) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing, (a) an order restraining the conduct complained of; (b) an order appointing a receiver or receiver-manager; (c) an order to regulate a corporation’s affairs by amending the articles or by-laws or creating or amending a unanimous shareholder agreement; (d) an order directing an issue or exchange of securities; (e) an order appointing directors in place of or in addition to all or any of the directors then in office; (f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder; (g) an order directing a corporation, subject to subsection (6), or any other person, to pay a security holder any part of the monies that the security holder paid for securities; (h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract; (i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in the form required by section 155 or an accounting in such other form as the court may determine; (j) an order compensating an aggrieved person; (k) an order directing rectification of the registers or other records of a corporation under section 243; (l) an order liquidating and dissolving the corporation; (m) an order directing an investigation under Part XIX to be made; and (n) an order requiring the trial of any issue. Duty of directors (4) If an order made under this section directs amendment of the articles or by-laws of a corporation, (a) the directors shall forthwith comply with subsection 191(4); and (b) no other amendment to the articles or by-laws shall be made without the consent of the court, until a court otherwise orders. Exclusion (5) A shareholder is not entitled to dissent under section 190 if an amendment to the articles is effected under this section. Limitation (6) A corporation shall not make a payment to a shareholder under paragraph (3)(f) or (g) if there are reasonable grounds for believing that (a) the corporation is or would after that payment be unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities. Alternative order (7) An applicant under this section may apply in the alternative for an order under section 214. R.S., 1985, c. C-44, s. 241; 2001, c. 14, ss. 117(F), 135(E). Evidence of shareholder approval not decisive 242. (1) An application made or an action brought or intervened in under this Part shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the corporation or its subsidiary has been or may be approved by the shareholders of such body corporate, but evidence of approval by the shareholders may be taken into account by the court in making an order under section 214, 240 or 241. Court approval to discontinue (2) An application made or an action brought or intervened in under this Part shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on such terms as the court thinks fit and, if the court determines that the interests of any complainant may be substantially affected by such stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant. No security for costs (3) A complainant is not required to give security for costs in any application made or action brought or intervened in under this Part. Interim costs (4) In an application made or an action brought or intervened in under this Part, the court may at any time order the corporation or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable for such interim costs on final disposition of the application or action. R.S., 1985, c. C-44, s. 242; 2001, c. 14, s. 118(F). Application to court to rectify records 243. (1) If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the registers or other records of a corporation, the corporation, a security holder of the corporation or any aggrieved person may apply to a court for an order that the registers or records be rectified. Notice to Director (2) An applicant under this section shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. Powers of court (3) In connection with an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order requiring the registers or other records of the corporation to be rectified; (b) an order restraining the corporation from calling or holding a meeting of shareholders or paying a dividend before such rectification; (c) an order determining the right of a party to the proceedings to have their name entered or retained in, or deleted or omitted from, the registers or records of the corporation, whether the issue arises between two or more security holders or alleged security holders, or between the corporation and any security holders or alleged security holders; and (d) an order compensating a party who has incurred a loss. R.S., 1985, c. C-44, s. 243; 2001, c. 14, s. 135(E). Application for directions 244. The Director may apply to a court for directions in respect of any matter concerning the Director’s duties under this Act, and on such application the court may give such directions and make such further order as it thinks fit. R.S., 1985, c. C-44, s. 244; 2001, c. 14, s. 135(E). Notice of refusal by Director 245. (1) If the Director refuses to file any articles or other document that this Act requires the Director to file before the articles or other document become effective, the Director shall, within twenty days after receiving them or twenty days after receiving any approval that may be required under any other Act, whichever is later, give written notice of the refusal to the person who sent the articles or document, giving reasons. Deemed refusal (2) If the Director does not file or give written notice of the refusal to file any articles or document within the time limited therefor in subsection (1), the Director is deemed for the purposes of section 246 to have refused to file the articles or document. R.S., 1985, c. C-44, s. 245; 2001, c. 14, s. 135(E). Appeal from Director’s decision 246. A person who feels aggrieved by a decision of the Director referred to in any of paragraphs (a) to (g) may apply to a court for an order, including an order requiring the Director to change the decision (a) to refuse to file in the form submitted any articles or other document required by this Act to be filed; (b) to give a name, to change or revoke a name, or to refuse to reserve, accept, change or revoke a name under section 12; (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations; (d) to refuse under subsection 187(11) to permit a continued reference to shares having a nominal or par value; (e) to refuse to issue a certificate of discontinuance under section 188 or a certificate attesting that as of a certain date the corporation exists under subsection 263.1(2); (f) to issue, or to refuse to issue, a certificate of revival under section 209, or the decision with respect to the terms for revival imposed by the Director; (f.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 265; (f.2) to cancel, or to refuse to cancel, the articles and related certificate under section 265.1; or (g) to dissolve a corporation under section 212. The Court may make any order it thinks fit. R.S., 1985, c. C-44, s. 246; 1999, c. 31, s. 65; 2001, c. 14, s. 119. Restraining or compliance order 247. If a corporation or any director, officer, employee, agent, auditor, trustee, receiver, receiver-manager or liquidator of a corporation does not comply with this Act, the regulations, articles, by-laws, or a unanimous shareholder agreement, a complainant or a creditor of the corporation may, in addition to any other right they have, apply to a court for an order directing any such person to comply with, or restraining any such person from acting in breach of, any provisions thereof, and on such application the court may so order and make any further order it thinks fit. R.S., 1985, c. C-44, s. 247; 2001, c. 14, s. 135(E). Summary application to court 248. Where this Act states that a person may apply to a court, the application may be made in a summary manner by petition, originating notice of motion, or otherwise as the rules of the court provide, and subject to any order respecting notice to interested parties or costs, or any other order the court thinks fit. 1974-75-76, c. 33, s. 241. Appeal of final order 249. (1) An appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act. Appeal with leave (2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court. R.S., 1985, c. C-44, s. 249; 2001, c. 14, s. 120. Offences with respect to reports 250. (1) A person who makes or assists in making a report, return, notice or other document required by this Act or the regulations to be sent to the Director or to any other person that (a) contains an untrue statement of a material fact, or (b) omits to state a material fact required therein or necessary to make a statement contained therein not misleading in the light of the circumstances in which it was made is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both. Officers, etc., of bodies corporate (2) Where a body corporate commits an offence under subsection (1), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted. Immunity (3) No person is guilty of an offence under subsection (1) or (2) if the person did not know, and in the exercise of reasonable diligence could not have known, of the untrue statement or omission. R.S., 1985, c. C-44, s. 250; 2001, c. 14, s. 135(E). Offence 251. Every person who, without reasonable cause, contravenes a provision of this Act or the regulations for which no punishment is provided is guilty of an offence punishable on summary conviction. 1974-75-76, c. 33, s. 244. Order to comply 252. (1) Where a person is guilty of an offence under this Act or the regulations, any court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order that person to comply with the provisions of this Act or the regulations for the contravention of which the person has been convicted. Limitation period (2) A prosecution for an offence under this Act may be instituted at any time within but not later than two years after the time when the subject-matter of the complaint arose. Civil remedy not affected (3) No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence under this Act. R.S., 1985, c. C-44, s. 252; 2001, c. 14, s. 135(E). PART XX.1 DOCUMENTS IN ELECTRONIC OR OTHER FORM Definitions 252.1 The definitions in this section apply in this Part. "electronic document" «document électronique » "electronic document" means, except in section 252.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means. "information system" «système d’information » "information system" means a system used to generate, send, receive, store, or otherwise process an electronic document. 2001, c. 14, s. 121. Application 252.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information. 2001, c. 14, s. 121. Use not mandatory 252.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document. Consent and other requirements (2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and (b) the electronic document is provided to the designated information system, unless otherwise prescribed. Revocation of consent (3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed. 2001, c. 14, s. 121. Creation and provision of information 252.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided, is satisfied by the creation or provision of an electronic document if (a) the by-laws or the articles of the corporation do not provide otherwise; and (b) the regulations, if any, have been complied with. 2001, c. 14, s. 121. Creation of information in writing 252.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 252.4, (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with. Provision of information in writing (2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 252.4, (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with. Copies (3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document. Registered mail (4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed. 2001, c. 14, s. 121. Statutory declarations and affidavits 252.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature; (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and (c) the requirements of sections 252.3 to 252.5 are complied with. Definitions (2) For the purposes of this section, "electronic document" and "secure electronic signature" have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act. Clarification (3) For the purpose of complying with paragraph (1)(c), the references to an "electronic document" in sections 252.3 to 252.5 are to be read as references to an "electronic document" as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act. 2001, c. 14, s. 121. Signatures 252.7 A requirement under this Act or the regulations for a signature or for a document to be executed, except with respect to a statutory declaration or an affidavit, is satisfied if, in relation to an electronic document, the prescribed requirements pertaining to this section, if any, are met and if the signature results from the application by a person of a technology or a process that permits the following to be proven: (a) the signature resulting from the use by a person of the technology or process is unique to the person; (b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and (c) the technology or process can be used to identify the person using the technology or process. 2001, c. 14, s. 121. PART XXI GENERAL Notice to directors and shareholders 253. (1) A notice or document required by this Act, the regulations, the articles or the by-laws to be sent to a shareholder or director of a corporation may be sent by prepaid mail addressed to, or may be delivered personally to, (a) the shareholder at the shareholder’s latest address as shown in the records of the corporation or its transfer agent; and (b) the director at the director’s latest address as shown in the records of the corporation or in the last notice filed under section 106 or 113. Effect of notice (2) A director named in a notice sent by a corporation to the Director under section 106 or 113 and filed by the Director is presumed for the purposes of this Act to be a director of the corporation referred to in the notice. Deemed receipt (3) A notice or document sent in accordance with subsection (1) to a shareholder or director of a corporation is deemed to be received at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the shareholder or director did not receive the notice or document at that time or at all. Undelivered notices (4) If a corporation sends a notice or document to a shareholder in accordance with subsection (1) and the notice or document is returned on two consecutive occasions because the shareholder cannot be found, the corporation is not required to send any further notices or documents to the shareholder until the shareholder informs the corporation in writing of the shareholder’s new address. R.S., 1985, c. C-44, s. 253; 2001, c. 14, ss. 122, 135(E). Notice to and service on a corporation 254. A notice or document required to be sent to or served on a corporation may be sent by registered mail to the registered office of the corporation shown in the last notice filed under section 19 and, if so sent, is deemed to be received or served at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the corporation did not receive the notice or document at that time or at all. 1974-75-76, c. 33, s. 247; 1978-79, c. 9, s. 79. Waiver of notice 255. Where a notice or document is required by this Act or the regulations to be sent, the sending of the notice or document may be waived or the time for the notice or document may be waived or abridged at any time with the consent in writing of the person entitled thereto. 1974-75-76, c. 33, s. 248; 1978-79, c. 9, s. 79. Certificate of Director 256. (1) Where this Act requires or authorizes the Director to issue a certificate or to certify any fact, the certificate shall be signed by the Director or by a Deputy Director authorized under section 260. Evidence (2) Except in a proceeding under section 213 to dissolve a corporation, a certificate referred to in subsection (1) or a certified copy thereof, when introduced as evidence in any civil, criminal or administrative action or proceeding, is conclusive proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate. 1974-75-76, c. 33, s. 249. Certificate of corporation 257. (1) A certificate issued on behalf of a corporation stating any fact that is set out in the articles, the by-laws, a unanimous shareholder agreement, the minutes of the meetings of the directors, a committee of directors or the shareholders, or in a trust indenture or other contract to which the corporation is a party, may be signed by a director, an officer or a transfer agent of the corporation. Proof (2) When introduced as evidence in any civil, criminal or administrative action or proceeding, (a) a fact stated in a certificate referred to in subsection (1), (b) a certified extract from a securities register of a corporation, or (c) a certified copy of minutes or extract from minutes of a meeting of shareholders, directors or a committee of directors of a corporation, is, 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. Security certificate (3) An entry in a securities register of, or a security certificate issued by, a corporation is, in the absence of evidence to the contrary, proof that the person in whose name the security is registered is owner of the securities described in the register or in the certificate. R.S., 1985, c. C-44, s. 257; 2001, c. 14, s. 123(F). Copies 258. Where a notice or document is required to be sent to the Director under this Act, the Director may accept a photostatic or photographic copy thereof. 1974-75-76, c. 33, s. 251. Content and form of notices and documents 258.1 The Director may establish the requirements for the content and fix the form, including electronic or other forms, of notices and documents sent to or issued by the Director pursuant to this Act, including (a) the notices and documents that may be transmitted in electronic or other form; (b) the persons or classes of persons who may transmit the notices and documents; (c) their signature in electronic or other form, or their execution, adoption or authorization in a manner that is to have the same effect for the purposes of this Act as their signature; (d) the time and circumstances when electronic notices and documents are to be considered to be sent or received, and the place where they are considered to have been sent or received; and (e) any matter necessary for the purposes of the application of this section. 1994, c. 24, s. 26; 2001, c. 14, s. 124. Exemption 258.2 In the prescribed circumstances, the Director may, on any conditions that the Director considers appropriate, exempt from the application of any provision of this Act requiring notices or documents to be sent to the Director any notices or documents or classes of notices or documents containing information similar to that contained in notices or documents required to be made public pursuant to any other Act of Parliament or to any Act of the legislature of a province as the Director specifies. 1994, c. 24, s. 26; 2001, c. 14, s. 124. Proof required by Director 259. (1) The Director may require that a document or a fact stated in a document required by this Act or the regulations to be sent to the Director shall be verified in accordance with subsection (2). Form of proof (2) A document or fact required by this Act or by the Director to be verified may be verified by affidavit or by statutory declaration under the Canada Evidence Act before any commissioner for oaths or for taking affidavits. R.S., 1985, c. C-44, s. 259; 2001, c. 14, s. 135(E). Appointment of Director 260. The Minister may appoint a Director and one or more Deputy Directors to carry out the duties and exercise the powers of the Director under this Act. 1974-75-76, c. 33, s. 253. Regulations 261. (1) The Governor in Council may make regulations (a) prescribing any matter required or authorized by this Act to be prescribed; (a.1) defining anything that, by this Act, is to be defined by regulation; (b) requiring the payment of a fee in respect of the filing, examination or copying of any document, or in respect of any action that the Director is required or authorized to take under this Act, and prescribing the amount of the fee or the manner of determining the fee; (c) respecting the payment of fees, including the time when and the manner in which the fees are to be paid, the additional fees that may be charged for the late payment of fees and the circumstances in which any fees previously paid may be refunded in whole or in part; (c.1) prescribing, for the purposes of subsection 137(1.1), a manner of determining the number of shares required for a person to be eligible to submit a proposal, including the time and manner of determining a value or percentage of the outstanding shares of the corporation; (d) prescribing, for the purposes of paragraph 137(5)(d), the minimum amount of support required in relation to the number of times the shareholder has submitted substantially the same proposal within the prescribed period; (e) prescribing rules with respect to exemptions permitted by this Act; (f) prescribing that, for the purpose of paragraph 155(1)(a), the standards as they exist from time to time, of an accounting body named in the regulations shall be followed; (g) prescribing any matter necessary for the purposes of the application of Part XX.1, including the time and circumstances when an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received; (h) prescribing the manner of, and conditions for, participating in a meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting; and (i) prescribing, for the purposes of subsection 141(3), the manner of, and conditions for, voting at a meeting of shareholders by means of a telephonic, electronic or other communication facility. Incorporation by reference (2) The regulations may incorporate any material by reference regardless of its source and either as it exists on a particular date or as amended from time to time. Incorporated material is not a regulation (3) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference. R.S., 1985, c. C-44, s. 261; 1994, c. 24, s. 27; 2001, c. 14, s. 125. Fee to be paid before service performed 261.1 The fee in respect of the filing, examination, or copying of any document, or in respect of any action that the Director is required or authorized to take, shall be paid to the Director on the filing, examination, or copying or before the Director takes the action in respect of which the fee is payable. 2001, c. 14, s. 126. Definition of "statement" 262. (1) In this section, "statement" means a statement of intent to dissolve and a statement of revocation of intent to dissolve referred to in section 211. Filing of articles and statements (2) Where this Act requires that articles or a statement relating to a corporation be sent to the Director, (a) the articles or the statement shall be signed by a director or an officer of the corporation or, in the case of articles of incorporation, by an incorporator; and (b) on receiving the articles or statement in the form that the Director fixes, any other required documents and the required fees, the Director shall (i) record the date of the filing, (ii) issue the appropriate certificate, (iii) file the certificate and the articles or statement, or a copy, image or photographic, electronic or other reproduction of the certificate and of the articles or statement, (iv) send the certificate, or a copy, image or photographic, electronic or other reproduction of the certificate, to the corporation or its agent, and (v) publish a notice of the issuance of the certificate in a publication generally available to the public. Date of certificate (3) A certificate referred to in subsection (2) issued by the Director may be dated as of the day the Director receives the articles, statement or court order pursuant to which the certificate is issued or as of any later day specified by the court or person who signed the articles or statement. (4) [Repealed, 1994, c. 24, s. 28] Date of certificate (5) Notwithstanding subsection (3), a certificate of discontinuance may be dated as of the day on which the corporation amalgamates pursuant to another Act or is continued. R.S., 1985, c. C-44, s. 262; 1994, c. 24, s. 28; 2001, c. 14, ss. 127, 135(E). Signature 262.1 (1) A signature required on a certificate issued by the Director under this Act may be printed or otherwise mechanically reproduced on the certificate or may be in accordance with the regulations made under paragraph 261(1)(c.1). Authority to sign notices (2) The notices referred to in subsections 19(2) and (4) and subsections 106(1) and 113(1), and the annual return referred to in section 263, may be signed by any individual who has the relevant knowledge of the corporation and who is authorized to do so by the directors, or, in the case of the notice referred to in subsection 106(1), the incorporators. Execution of documents (3) Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed or signed by one or more of the individuals. The documents, when duly executed or signed by all individuals required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of this Act. 1994, c. 24, s. 29; 2001, c. 14, s. 128. Annual return 263. Every corporation shall, on the prescribed date, send to the Director an annual return in the form that the Director fixes and the Director shall file it. R.S., 1985, c. C-44, s. 263; 2001, c. 14, s. 129. Certificate 263.1 (1) The Director may provide any person with a certificate stating that a corporation (a) has sent to the Director a document required to be sent under this Act; (b) has paid all required fees; or (c) exists as of a certain date. Director may refuse to issue certificate of existence (2) For greater certainty, the Director may refuse to issue a certificate described in paragraph (1)(c) if the Director has knowledge that the corporation is in default of sending a document required to be sent under this Act or is in default of paying a required fee. 2001, c. 14, s. 129. Alteration 264. The Director may alter a notice or document, other than an affidavit or statutory declaration, if authorized by the person who sent the document or by that person’s representative. R.S., 1985, c. C-44, s. 264; 2001, c. 14, s. 135(E). Corrections at request of Director 265. (1) If there is an error in articles, a notice, a certificate or other document, the directors or shareholders of the corporation shall, on the request of the Director, pass the resolutions and send to the Director the documents required to comply with this Act, and take such other steps as the Director may reasonably require so that the Director may correct the document. No prejudice (2) Before proceeding under subsection (1), the Director must be satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation. Corrections at the request of the corporation (3) The Director may, at the request of the corporation or of any other interested person, accept a correction to any of the documents referred to in subsection (1) if (a) the correction is approved by the directors of the corporation, unless the error is obvious or was made by the Director; and (b) the Director is satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation and that the correction reflects the original intention of the corporation or the incorporators, as the case may be. Application to court (4) If, in the view of the Director, of the corporation or of any interested person who wishes a correction, a correction to any of the documents referred to in subsection (1) would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the document be corrected and for an order determining the rights of the shareholders or creditors. Notice to Director (5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel. Director may require surrender of document (6) The Director may demand the surrender of the original document, and may issue a corrected certificate or file the corrected articles, notice or other document. Date of corrected document (7) A corrected document shall bear the date of the document it replaces unless (a) the correction is made with respect to the date of the document, in which case the document shall bear the corrected date; or (b) the court decides otherwise. Notice (8) If a corrected certificate materially amends the terms of the original certificate, the Director shall without delay give notice of the correction in a publication generally available to the public. R.S., 1985, c. C-44, s. 265; 2001, c. 14, s. 130. Cancellation of articles by Director 265.1 (1) In the prescribed circumstances, the Director may cancel the articles and related certificate of a corporation. No prejudice (2) Before proceeding under subsection (1), the Director must be satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation. Request to Director to cancel articles (3) In the prescribed circumstances, the Director may, at the request of a corporation or of any other interested person, cancel the articles and related certificate of the corporation if (a) the cancellation is approved by the directors of the corporation; and (b) the Director is satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation and that the cancellation reflects the original intention of the corporation or the incorporators, as the case may be. Application to court (4) If, in the view of the Director, of the corporation or of any interested person who wishes a cancellation, a cancellation of articles and a related certificate would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the articles and certificate be cancelled and for an order determining the rights of the shareholders or creditors. Notice to Director (5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel. Return of certificate (6) The Director may demand the surrender of a cancelled certificate. 2001, c. 14, s. 130. Inspection 266. (1) A person who has paid the required fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent to the Director under subsection 230(2), and to make copies of or extracts from it. Copies (2) The Director shall furnish any person with a copy, extract, certified copy or certified extract of a document required by this Act or the regulations to be sent to the Director, except a report sent under subsection 230(2). R.S., 1985, c. C-44, s. 266; 2001, c. 14, s. 130. Records of Director 267. (1) Records required by this Act to be maintained by the Director (a) may be in bound or loose-leaf form or in photographic film form; or (b) may be entered or recorded by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information in intelligible form within a reasonable time. Obligation to furnish (2) Where records are maintained by the Director otherwise than in written form, (a) the Director shall furnish any copy required to be furnished under subsection 266(2) in intelligible form; and (b) a report reproduced from those records, if it is certified by the Director, is admissible in evidence to the same extent as the original records would have been. Retention of records (3) The Director is not required to produce any document, other than a certificate and attached articles or statement filed under section 262, after the expiration of the prescribed period. R.S., 1985, c. C-44, s. 267; 1994, c. 24, s. 30; 2001, c. 14, s. 131. Form of publication 267.1 Information or notices required by this Act to be summarized in a publication generally available to the public or published by the Director may be made available to the public or published by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information or notice in intelligible form within a reasonable time. 1994, c. 24, s. 31; 2001, c. 14, s. 132. Definition of "charter" 268. (1) In this section, "charter" includes (a) an act of incorporation and any amendments thereto; and (b) letters patent of incorporation and any letters patent supplementary thereto. Amendment of charter — special Act (2) In connection with a continuance under this Act, the shareholders of a body corporate incorporated or continued by or under a special Act of Parliament who are entitled to vote at annual meetings of shareholders may, despite the charter of the body corporate, (a) by special resolution, authorize the directors of the body corporate to apply under section 187 for a certificate of continuance; and (b) by the same resolution, make any amendment to the charter of the body corporate that a corporation incorporated under this Act may make to its articles. Amendment of charter — other Act (2.1) In connection with a continuance under this Act, the shareholders of a body corporate incorporated or continued by or under an Act of Parliament, other than this Act or a special Act, who are entitled to vote at annual meetings of shareholders may, subject to any other Act of Parliament or the charter of the body corporate, (a) by special resolution, authorize the directors of the body corporate to apply under section 187 for a certificate of continuance; and (b) by the same resolution, make any amendment to the charter of the body corporate that a corporation incorporated under this Act may make to its articles. Change of class rights (3) Despite subsections (2) and (2.1), the shareholders of a body corporate may not, by a special resolution under any of those subsections, make any change of the nature referred to in subsection 176(1) that affects a class or series of shares, unless (a) the charter of the body corporate otherwise provides in respect of an amendment of the nature referred to in paragraph 176(1)(a), (b) or (e); or (b) the holders of the class or series of shares approve the change in accordance with section 176. Authorizing continuance (4) Subject to subsections (6) and (7), the directors of a body corporate incorporated or continued by or under a special Act of Parliament may, despite the charter of the body corporate, apply under section 187 for a certificate of continuance if the articles of continuance do not make any amendment to the charter of the body corporate other than an amendment required to conform to this Act. Authorizing continuance (4.1) Subject to subsections (6) and (7), the directors of a body corporate incorporated or continued by or under an Act of Parliament, other than this Act or a special Act, may, subject to any other Act of Parliament or the charter of the body corporate, apply under section 187 for a certificate of continuance if the articles of continuance do not make any amendment to the charter of the body corporate other than an amendment required to conform to this Act. Financial institutions (4.2) For the purposes of this section, every body corporate that is incorporated or continued under an Act of Parliament and to which the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act applies is deemed to be incorporated or continued by or under an Act of Parliament other than this Act or a special Act. No dissent (5) A shareholder is not entitled to dissent under section 190 in respect of an amendment made under subsection (2), (2.1), (3), (4) or (4.1). Discretionary continuance (6) The Governor in Council may, by order, require that a body corporate incorporated by or under an Act of Parliament to which Part I or II of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, does not apply, apply for a certificate of continuance under section 187 within any period that may be prescribed except for the following: (a) a bank; (a.1) an association to which the Cooperative Credit Associations Act applies; (b) a company or society to which the Insurance Companies Act applies; and (c) a company to which the Trust and Loan Companies Act applies. Discretionary continuance — Canada Corporations Act (7) A body corporate to which Part IV of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applies, other than a body corporate that carries on a business referred to in any of paragraphs (6)(a.1) to (c), may apply for a certificate of continuance under section 187. Fees (8) A body corporate that obtains a certificate of continuance under this section is not required to pay any fees otherwise payable under this Act in respect of such continuance. Idem (9) A body corporate referred to in subsection (6) that does not make an application to obtain a certificate of continuance within the period prescribed is dissolved on the expiration of that period. Continuance prohibited (10) A body corporate to which Part II or Part III of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applies or any similar body corporate incorporated otherwise than by or under an Act of Parliament may not apply for a certificate of continuance under section 187. Exception for railway companies (11) A body corporate that is incorporated by or under a Special Act, as defined in section 87 of the Canada Transportation Act, may apply for a certificate of continuance under section 187. R.S., 1985, c. C-44, s. 268; 1991, c. 45, s. 556, c. 46, s. 597, c. 47, s. 724; 1992, c. 1, ss. 142, 160(F); 1994, c. 24, s. 32; 1996, c. 10, s. 213; 2001, c. 14, s. 133; 2007, c. 6, s. 401. AMENDMENT NOT IN FORCE -- 2009, c. 2, ss. 470(1), (2): Articles and by-laws 470. (1) Any provisions of the articles of the Corporation, as defined in subsection 2(1) of the Air Canada Public Participation Act, that impose constraints described in paragraphs 6(1)(b) and (c) of that Act, as those paragraphs read immediately before the coming into force of section 469, and any provisions of the Corporation’s by-laws that give effect to those constraints, have, as of the day on which section 469 comes into force, no further force or effect. Restatement of articles (2) The articles of the Corporation may be restated under section 180 of the Canada Business Corporations Act as a result of subsection (1). |
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Burlington Business Lawyer Christopher R. Neufeld is a corporate attorney admitted to practice law in both Ontario (Canada) and New York (U.S.A.). Christopher's legal practice focuses primarily on business law, in particular corporate commercial transactions. The law firm of Neufeld Legal Professional Corporation is headquartered at 719 Catalina Crescent, Burlington, Ontario L7L 5B9, and as such is in immediate proximity to downtown Toronto, Mississauga, Hamilton, Oakville, Brampton, Milton, Guelph and Kitchener Waterloo. Your Canada Business Lawyer. COPYRIGHT 2009. |
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