An Act to amend certain Acts in relation to financial institutions (S.C. 2005, c. 54)
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Assented to 2005-11-25
1991, c. 48COOPERATIVE CREDIT ASSOCIATIONS ACT
160. (1) Subsections 153(1) and (2) of the Act are replaced by the following:
Marginal note:Notice of refusal
153. (1) If an association refuses to include a proposal in a notice of a meeting referred to in paragraph 146(1)(a), it shall, in writing and within the prescribed period after the day on which it receives the proposal, notify the member submitting the proposal of its intention to omit the proposal from the notice and of the reasons for the refusal.
Marginal note:Application to court
(2) On the application of a member submitting a proposal who claims to be aggrieved by an association’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order that it thinks fit.
(2) Subsection 153(3) of the French version of the Act is replaced by the following:
Marginal note:Demande de l’association
(3) L’association ou toute personne qui prétend qu’une proposition lui cause un préjudice peut demander au tribunal une ordonnance autorisant l’association à ne pas l’annexer à l’avis de convocation; le tribunal, s’il est convaincu que le paragraphe 152(3) s’applique, peut rendre en l’espèce la décision qu’il estime pertinente.
Marginal note:2001, c. 9, s. 274
161. (1) Subsections 154(1) to (4) of the Act are replaced by the following:
Marginal note:List of members entitled to notice
154. (1) An association shall, at the close of business on the day immediately preceding the day on which notice of a meeting is to be sent under paragraph 146(1)(a), prepare an alphabetical list of members entitled to receive notice.
Marginal note:List of shareholders entitled to notice
(2) An association shall prepare an alphabetical list of shareholders entitled to receive notice of a meeting under paragraph 146(1)(b) showing the number of shares held by each shareholder
(a) if a record date is fixed under paragraph 145(1)(b), no later than 10 days after that date; and
(b) if no record date is fixed, on the record date determined under paragraph 145(2)(a).
Marginal note:Voting list
(3) The association shall prepare an alphabetical list of shareholders entitled to vote as of the record date showing the number of shares held by each shareholder
(a) if a record date is fixed under paragraph 145(1)(c), no later than 10 days after that date; and
(b) if a record date is not fixed under paragraph 145(1)(c), no later than 10 days after a record date is fixed under paragraph 145(1)(b) or no later than the record date determined under paragraph 145(2)(a), as the case may be.
Marginal note:Entitlement to vote
(4) A shareholder whose name appears on a list prepared under subsection (3) is entitled to vote the shares shown opposite their name.
(2) The portion of subsection 154(5) of the Act before paragraph (a) is replaced by the following:
Marginal note:Examination of list
(5) A member or shareholder may examine the list of members or shareholders
162. Section 160 of the Act is amended by adding the following after subsection (2):
Marginal note:Electronic voting
(3) Despite subsection (1) and unless the by-laws provide otherwise, any vote referred to in that subsection may be held entirely by means of a telephonic, electronic or other communication facility if the association makes one available.
Marginal note:Voting while participating electronically
(4) Unless the by-laws provide otherwise, any person who is participating in a meeting of members or shareholders under subsection 143(2) and entitled to vote at that meeting may vote by means of the telephonic, electronic or other communication facility that the association has made available for that purpose.
Marginal note:Voting by mail
(5) The by-laws of an association may, subject to the regulations and any conditions set out in the by-laws, allow members to vote by mail.
Marginal note:Regulations
(6) The Governor in Council may make regulations
(a) respecting the manner of and conditions for voting at a meeting of members or shareholders by means of a telephonic, electronic or other communication facility;
(b) respecting voting by mail; and
(c) requiring the approval by the Superintendent of a by-law made under subsection (5).
163. Section 161 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 that the chairperson declared a resolution to be carried or defeated is in the absence of evidence to the contrary proof of that fact without proof of the number or proportion of votes recorded in favour of or against the resolution.
164. Paragraph 162(4)(a) of the Act is replaced by the following:
(a) a record date has been fixed under paragraph 145(1)(b) and notice of it has been given under subsection 145(3);
165. Subsection 163(1) of the Act is replaced by the following:
Marginal note:Court may order meeting to be called
163. (1) A court may, on the application of a director, a person who is entitled to vote at a meeting or the Superintendent, order a meeting to be called, held or 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 it is 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 ought to be called, held or conducted within the time or in the manner that it directs for any other reason.
Marginal note:1997, c. 15, s. 120
166. (1) The definition “registrant” in section 166.01 of the Act is repealed.
Marginal note:1997, c. 15, s. 120
(2) The definition ““solicit” or “solicitation”” in section 166.01 of the Act is replaced by the following:
“solicitation”
« sollicitation »
“solicitation”
(a) includes
(i) a request for a proxy whether or not accompanied by 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 subsection 166.04(1); 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 subsection 166.07(1),
(iv) a solicitation by a person in respect of shares of which they are the beneficial owner,
(v) a prescribed public announcement by a shareholder of how they intend to vote and the reasons for that decision, or
(vi) a communication, other than a solicitation by or on behalf of the management of an association, that is made to shareholders in the prescribed circumstances.
(3) Section 166.01 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, association, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominee holds securities of an issuer;
(e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund or education savings plan or another similar self-administered savings or investment plan that is 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 performs functions similar to those performed by a person referred to in any of paragraphs (a) to (e) and holds a security registered in their name, or in the name of their nominee, on behalf of another person who is not the registered holder of the security.
Marginal note:1997, c. 15, s. 120
167. Subsection 166.04(2) of the Act is replaced by the following:
Marginal note:Exception
(2) The management of an association is not required to send a form of proxy under subsection (1) if the association
(a) is not a distributing association; and
(b) has 50 or fewer shareholders who are entitled to vote at a meeting, two or more joint holders of a share being counted as one shareholder.
168. Section 166.05 of the Act is amended by adding the following after subsection (1):
Marginal note:Exceptions
(1.1) Despite paragraph (1)(b), it is not necessary to send a dissident’s proxy circular if
(a) the total number of shareholders whose proxies are solicited is 15 or fewer, two or more joint holders of a share being counted as one shareholder; or
(b) the solicitation is conveyed by public broadcast, speech or publication and the prescribed requirements are complied with.
Marginal note:1997, c. 15, s. 120
169. The portion of subsection 166.06(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Vote by show of hands
(3) Despite subsections (1) and (2) and unless a shareholder or proxyholder demands a ballot, if the chairperson of a meeting of shareholders declares to the meeting that, if a ballot were 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, would be the decision of the meeting on a matter or group of matters is less than 5% of all the votes that might be cast by shareholders in person or by proxy,
Marginal note:1997, c. 15, s. 120
170. Section 166.07 of the Act is replaced by the following:
Marginal note:Duty of intermediary
166.07 (1) Shares of an association that are registered in the name of an intermediary or an intermediary’s nominee and not beneficially owned by the intermediary may not be voted unless the intermediary sends to the beneficial owner
(a) a copy of the notice of the meeting, annual statement, management proxy circular and dissident’s proxy circular and any other documents, other than the form of proxy, that were sent to shareholders by or on behalf of any person for use in connection with the meeting; and
(b) a written request for voting instructions except if the intermediary has already received written voting instructions from the beneficial owner.
Marginal note:When documents to be sent
(2) The intermediary shall send the documents referred to in subsection (1) without delay after they receive the documents referred to in paragraph (1)(a).
Marginal note:Restriction on voting
(3) An intermediary or a proxyholder appointed by them may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or their nominee unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner.
Marginal note:Copies
(4) A person by or on behalf of whom a solicitation is made shall on request and without delay provide the intermediary, at the person’s expense, with the necessary number of copies of the documents referred to in paragraph (1)(a).
Marginal note:Instructions to intermediary
(5) The intermediary shall vote or appoint a proxyholder to vote in accordance with any written voting instructions received from the beneficial owner.
Marginal note:Beneficial owner as proxyholder
(6) If a beneficial owner so requests and provides an intermediary with the appropriate documentation, the intermediary shall appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.
Marginal note:Effect of intermediary’s failure to comply
(7) The failure of an intermediary to comply with any of subsections (1) to (6) does not render void any meeting of shareholders or any action taken at the meeting.
Marginal note:Intermediary may not vote
(8) Nothing in this Part gives an intermediary the right to vote shares that they are otherwise prohibited from voting.
Marginal note:Exemption
166.071 The Governor in Council may make regulations respecting the conditions under which an association is exempt from any of the requirements of sections 166.02 to 166.07.
171. The Act is amended by adding the following after section 172:
Marginal note:Election or appointment as director
172.1 The election or appointment of a person as a director is subject to the following:
(a) the person was present at the meeting when the election or appointment took place and did not refuse to hold office as a director; or
(b) the person was not present at the meeting when the election or appointment took place but
(i) consented in writing to hold office as a director before the election or appointment or within 10 days after it, or
(ii) acted as a director after the election or appointment.
172. Paragraph 183(3)(a) of the Act is replaced by the following:
(a) the remaining directors appointed or elected by those persons may fill the vacancy except one resulting from an increase in the number or the minimum or maximum number of directors who are to be appointed or elected by that class or from a failure to appoint or elect the number or minimum number of directors who are to be appointed or elected by that class;
173. Subsection 187(3) of the Act is replaced by the following:
Marginal note:Director continues to be present
(3) A director who is present at a meeting of directors or of a committee of directors but is not, in accordance with subsection 207(1), present at any particular time during the meeting is considered to be present for the purposes of this section.
174. Section 189.1 of the Act is amended by adding the following after subsection (4):
Marginal note:Evidence
(5) Unless a ballot is demanded, an entry in the minutes of a meeting that the chairperson declared a resolution to be carried or defeated is in the absence of evidence to the contrary proof of that fact without proof of the number or proportion of votes recorded in favour of or against the resolution.
175. Paragraphs 202(c) and (d) of the Act are replaced by the following:
(c) fill a vacancy among the directors, on a committee of directors or in the office of auditor, or appoint additional directors;
(d) issue or cause to be issued securities, including an issue of shares of a series that is authorized in accordance with section 71, except in accordance with any authorization made by the directors;
176. Section 206 of the Act is replaced by the following:
Marginal note:Disclosure of interest
206. (1) A director or officer of an association shall disclose to the association, in writing or by requesting to have it entered in the minutes of a meeting of directors or a meeting of a committee of directors, the nature and extent of any interest they have in a material contract or material transaction with the association, whether entered into or proposed, if they
(a) are a party to the contract or transaction;
(b) are a director or officer of a party, other than a member, to the contract or transaction or a person acting in a similar capacity; or
(c) have a material interest in a party to the contract or transaction.
Marginal note:Time of disclosure — director
(2) The disclosure shall be made in the case of a director
(a) at the meeting of directors, or of a committee of directors, at which the proposed contract or transaction is first considered;
(b) if at the time of the meeting referred to in paragraph (a) the director was not interested in the proposed contract or transaction, at the first one after they become interested in it;
(c) if the director becomes interested after a contract or transaction is entered into, at the first one after they become interested; or
(d) if a person who is interested in a contract or transaction becomes a director, at the first one after they become a director.
Marginal note:Time of disclosure — officer
(3) The disclosure shall be made in the case of an officer who is not a director
(a) immediately after they become aware that the contract, transaction, proposed contract or proposed transaction is to be considered or has been considered at a meeting of directors or of a committee of directors;
(b) if they become interested after the contract or transaction is entered into, immediately after they become interested; or
(c) if a person who is interested in a contract or transaction becomes an officer, immediately after they become an officer.
Marginal note:Time of disclosure — contract not requiring approval
(4) If the material contract or material transaction, whether entered into or proposed, is one that in the ordinary course of the association’s business would not require approval by the directors or shareholders, the director or officer shall disclose to the association, in writing or by requesting to have it entered in the minutes of a meeting of directors or of a committee of directors, the nature and extent of their interest immediately after they become aware of the contract or transaction.
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