An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence (S.C. 2001, c. 14)
Full Document:
Assented to 2001-06-14
Marginal note:1991, c. 47, s. 720
28. (1) Subsection 46(1) of the Act is replaced by the following:
Marginal note: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.
(2) Subsection 46(2) of the French version of the Act is replaced by the following:
Marginal note:Devoir des administrateurs
(2) Les administrateurs doivent choisir les actions à vendre en vertu du paragraphe (1) de bonne foi et de manière à ne pas se montrer injuste à l’égard des autres détenteurs d’actions de la catégorie ou de la série soit en leur portant préjudice soit en ne tenant pas compte de leurs intérêts.
29. The definition “fiduciary” in subsection 48(2) of the Act is replaced by the following:
“fiduciary”
« représentant »
“fiduciary” means any person acting in a fiduciary capacity and includes a personal representative of a deceased person;
30. (1) Subsection 49(2) of the Act is replaced by the following:
Marginal note: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.
(2) Subsections 49(4) and (5) of the Act are replaced by the following:
Marginal note: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.
Marginal note:1994, c. 24, par. 34(1)(c)(F)
(3) Paragraph 49(7)(b) of the Act is replaced by the following:
(b) the words “Incorporated under the Canada Business Corporations Act” or “subject to the Canada Business Corporations Act”;
Marginal note:1991, c. 47, s. 721
(4) Subsections 49(8) to (10) of the Act are replaced by the following:
Marginal note: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).
Marginal note: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.
Marginal note: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.
31. (1) Paragraphs 51(2)(a) and (b) of the Act are replaced by the following:
(a) the heir of a deceased security holder, or the personal representative of the heirs, or the personal representative of the estate 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
(2) Subsection 51(5) of the Act is replaced by the following:
Marginal note: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.
(3) Subsection 51(8) of the Act is replaced by the following:
Marginal note:Excepted transmissions
(8) Despite subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration 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.
32. Paragraph 65(1)(d) of the English version of the Act is replaced by the following:
(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;
33. Section 75 of the French version of the Act is replaced by the following:
Marginal note:Cas de non-responsabilité du mandataire ou dépositaire
75. Le mandataire ou le dépositaire de bonne foi — ayant respecté les normes commerciales raisonnables si, de par sa profession, il négocie les valeurs mobilières d’une société — qui a reçu, vendu, donné en gage ou livré ces valeurs mobilières conformément aux instructions de son mandant ne peut être tenu responsable de détournement ni de violation d’une obligation de représentant, même si le mandant n’avait pas le droit d’aliéner ces valeurs mobilières.
34. Subsection 82(2) of the French version of the Act is replaced by the following:
Marginal note:Champ d’application
(2) La présente partie s’applique aux actes de fiducie prévoyant une émission de titres de créances par voie d’un appel public à l’épargne.
35. Section 102 of the Act is replaced by the following:
Marginal note: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.
Marginal note: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.
36. Subsection 103(1) of the French version of the Act is replaced by the following:
Marginal note:Règlements administratifs
103. (1) Sauf disposition contraire des statuts, des règlements administratifs ou de conventions unanimes des actionnaires, les administrateurs peuvent, par résolution, prendre, modifier ou révoquer tout règlement administratif portant sur les activités commerciales ou les affaires internes de la société.
37. (1) Subsection 105(3) of the Act is replaced by the following:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
(2) The portion of subsection 105(4) of the Act before paragraph (a) is replaced by the following:
Marginal note: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
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