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
61. Section 141 of the Act is amended by adding the following after subsection (2):
Marginal note: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.
Marginal note: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.
62. Section 142 of the Act is amended by adding the following after subsection (2):
Marginal note: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.
63. Paragraph 143(3)(a) of the Act is replaced by the following:
(a) a record date has been fixed under paragraph 134(1)(c) and notice of it has been given under subsection 134(3);
64. Subsection 144(1) of the Act is replaced by the following:
Marginal note: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.
65. Paragraph 145(2)(c) of the French version of the Act is replaced by the following:
c) ordonner une nouvelle élection ou une nouvelle nomination en donnant des directives pour la conduite, dans l’intervalle, des activités commerciales et des affaires internes de la société;
Marginal note:1994, c. 24, s. 15(F)
66. Section 146 of the Act is replaced by the following:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Constructive party
(3) A purchaser or transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement.
Marginal note: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.
Marginal note: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.
Marginal note: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.
67. (1) The definition “registrant” in section 147 of the Act is repealed.
(2) The definition “solicit” or “ solicitation” in section 147 of the Act is replaced by the following:
“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;
(3) Section 147 of the Act is amended by adding the following in alphabetical order:
“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.
68. Subsection 149(2) of the Act is replaced by the following:
Marginal note: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.
69. Section 150 of the Act is amended by adding the following after subsection (1):
Marginal note: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.
Marginal note: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.
70. Subsections 151(1) and (2) of the Act are replaced by the following:
Marginal note: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.
Marginal note: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.
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