ONTARIO BUSINESS CORPORATIONS ACT
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 a statute at www.e-laws.gov.on.ca.
109. In this Part,
“dissident’s information circular” means the circular referred to in clause 112 (1) (b); (“circulaire d’information d’un dissident”)
“form of proxy” means a form that is in written or printed format or a format generated by telephonic or electronic means and that becomes a proxy when completed and signed in writing or electronic signature by or on behalf of a shareholder; (“formule de procuration”)
“management information circular” means the circular referred to in clause 112 (1) (a); (“circulaire d’information de la direction”)
“proxy” means a completed and signed form of proxy by means of which a shareholder has appointed a proxyholder to attend and act on a shareholder’s behalf at a meeting of shareholders; (“procuration”)
“solicit” and “solicitation” include,
(a) a request for a proxy whether or not accompanied by or included in a form of proxy,
(b) a request to execute or not to execute a form of proxy or to revoke a proxy,
(c) 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
(d) the sending of a form of proxy to a shareholder under section 111,
but do not include,
(e) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
(f) the performance of administrative acts or professional services on behalf of a person soliciting a proxy,
(g) the sending of material under section 49 of the Securities Act,
(h) a solicitation by a person in respect of shares of which the person is the beneficial owner,
(i) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision,
(j) 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; (“sollicitation”, “solliciter”)
“solicitation by or on behalf of the management of a corporation” means a solicitation by any person under a resolution or the instructions of the directors of that corporation or a committee of such directors. (“sollicitation effectuée par la direction ou pour son compte”) R.S.O. 1990, c. B.16, s. 109; 1999, c. 12, Sched. F, s. 6; 2006, c. 34, Sched. B, s. 17.
110. (1) Every 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 need not be shareholders, as the shareholder’s nominee to attend and act at the meeting in the manner, to the extent and with the authority conferred by the proxy. R.S.O. 1990, c. B.16, s. 110 (1).
(2) Subject to subsection (4.2), a proxy must be signed,
(a) in writing or by electronic signature by the shareholder or an attorney who is authorized by a document that is signed in writing or by electronic signature; or
(b) if the shareholder is a body corporate, by an officer or attorney of the body corporate duly authorized. 1999, c. 12, Sched. F, s. 7 (1).
(2.1) A proxy appointing a proxyholder to attend and act at a meeting or meetings of shareholders of an offering corporation ceases to be valid one year from its date. 1999, c. 12, Sched. F, s. 7 (1).
Form of proxy
(3) Every form of proxy shall comply with the regulations. R.S.O. 1990, c. B.16, s. 110 (3).
(4) A shareholder may revoke a proxy,
(a) by depositing an instrument in writing that complies with subsection (4.1) and that is signed by the shareholder or by an attorney who is authorized by a document that is signed in writing or by electronic signature;
(b) by transmitting, by telephonic or electronic means, a revocation that complies with subsection (4.1) and that, subject to subsection (4.2), is signed by electronic signature; or
(c) in any other manner permitted by law. 1999, c. 12, Sched. F, s. 7 (2).
Time of revocation
(4.1) The instrument or the revocation must be received,
(a) 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 any adjournment of it, at which the proxy is to be used; or
(b) by the chair of the meeting on the day of the meeting or an adjournment of it. 1999, c. 12, Sched. F, s. 7 (2).
(4.2) A shareholder or an attorney may sign, by electronic signature, a proxy, a revocation of proxy or a power of attorney authorizing the creation of either of them if the means of electronic signature permits a reliable determination that the document was created or communicated by or on behalf of the shareholder or the attorney, as the case may be. 1999, c. 12, Sched. F, s. 7 (2).
Time limit for deposit
(5) The directors may by resolution fix a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding any meeting or adjourned meeting of shareholders before which time proxies to be used at that meeting must be deposited with the corporation or an agent thereof, and any period of time so fixed shall be specified in the notice calling the meeting. R.S.O. 1990, c. B.16, s. 110 (5).
Mandatory solicitation of proxy
111. The management of an offering corporation shall, concurrently with or prior to sending notice of a meeting of shareholders, send a form of proxy to each shareholder who is entitled to receive notice of the meeting. R.S.O. 1990, c. B.16, s. 111.
112. (1) No person shall solicit proxies in respect of an offering corporation unless,
(a) in the case of solicitation by or on behalf of the management of the corporation, a management information 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 information circular in prescribed form,
is sent to the auditor of the corporation, to each shareholder whose proxy is solicited and, if clause (b) applies, to the corporation. R.S.O. 1990, c. B.16, s. 112 (1).
(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 information circular, if the total number of shareholders whose proxies are solicited is 15 or fewer, two or more joint holders being counted as one shareholder. 2006, c. 34, Sched. B, s. 18.
(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 information circular, if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication. 2006, c. 34, Sched. B, s. 18.
(2) A person, upon sending a management or dissident’s information circular, shall concurrently file with the Commission,
(a) in the case of a management information circular, a copy thereof together with a copy of the notice of meeting, form of proxy and of any other documents for use in connection with the meeting; and
(b) in the case of a dissident’s information circular, a copy thereof together with a copy of the form of proxy and of any other documents for use in connection with the meeting. R.S.O. 1990, c. B.16, s. 112 (2).
Exemption order re ss. 111, 112
113. Upon the application of any interested person, the Commission may, if satisfied in the circumstances of the particular case that there is adequate justification for so doing, make an order, on such terms and conditions as the Commission may impose, exempting, in whole or in part, any person from the requirements of section 111 or from the requirements of section 112. R.S.O. 1990, c. B.16, s. 113.
114. (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 the person. R.S.O. 1990, c. B.16, s. 114 (1).
Rights of proxyholder
(2) A proxyholder or an alternate proxyholder has the same rights as the shareholder who appointed him or her 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 a show of hands. R.S.O. 1990, c. B.16, s. 114 (2).
(3) Despite subsections (1) and (2), where the chair of a meeting of shareholders declares to the meeting that, to the best of his or her belief, if a ballot is conducted, the total number of votes attached to the shares represented at the meeting by proxy required to be voted against what will be the decision of the meeting in relation to any matter or group of matters is less than 5 per cent of all the votes that might be cast at the meeting on such ballot, and where a shareholder, proxyholder or alternate proxyholder does not demand a ballot,
(a) the chair 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. R.S.O. 1990, c. B.16, s. 114 (3).
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. COPYRIGHT 2009.