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. 46BANK ACT
18. Subsection 138(1) of the Act is replaced by the following:
Marginal note:Notice of meeting
138. (1) Notice of the time and place of a meeting of shareholders of a bank shall be sent within the prescribed period to
(a) each shareholder entitled to vote at the meeting;
(b) each director;
(c) the auditor or auditors of the bank; and
(d) the Superintendent.
Marginal note:Exception
(1.01) In the case of a bank that is not a distributing bank, notice may be sent within any shorter period specified in its by-laws.
19. Subsection 139(1) of the Act is replaced by the following:
Marginal note:Notice not required
139. (1) A notice of a meeting is not required to be sent to shareholders who are not registered on the records of the bank or the bank’s transfer agent on the record date fixed under paragraph 137(5)(c) or determined under paragraph 137(6)(a).
20. (1) Subsection 143(1) of the Act is replaced by the following:
Marginal note:Proposals
143. (1) Subject to subsections (1.1) and (1.2), a registered holder or beneficial owner of shares that may be voted at an annual meeting of shareholders may
(a) submit to the bank notice of any matter that they propose to raise at the meeting (in this section and section 144 referred to as a “proposal”); and
(b) discuss at the meeting any matter in respect of which they would have been entitled to submit a proposal.
Marginal note:Eligibility to submit proposal
(1.1) To be eligible to submit a proposal a person shall
(a) for at least the prescribed period be the registered holder or beneficial owner of at least the prescribed number of the bank’s outstanding shares; or
(b) have the support of persons who, in the aggregate and including or not including the person who submits the proposal, have for at least the prescribed period been the registered holders or beneficial owners of at least the prescribed number of the bank’s outstanding shares.
Marginal note:Information to be provided
(1.2) A proposal is to be accompanied by the following information:
(a) the name and address of the person submitting the proposal and the names and addresses of their supporters, if any; and
(b) the number of shares held or owned by the person and their supporters, if any, and the date that the shares were acquired.
Marginal note:Information not part of proposal
(1.3) The information provided under subsection (1.2) does not form part of a proposal or of the supporting statement referred to in subsection (3) and is not to be included for the purpose of the prescribed maximum number of words referred to in subsection (3).
Marginal note:Proof may be required
(1.4) If the bank requests within the prescribed period that a person provide proof that they are eligible to submit a proposal, the person shall within the prescribed period provide proof that they meet the requirements of subsection (1.1).
(2) Subsections 143(3) to (5) of the Act are replaced by the following:
Marginal note:Supporting statement
(3) At the request of the person who submits a proposal, the bank shall set out in the management proxy circular or attach to it the person’s statement in support of the proposal and their name and address. The statement and proposal together are not to exceed the prescribed maximum number of words.
Marginal note:Nomination of directors
(4) A proposal may include nominations for the election of directors if it is signed by one or more registered holders or beneficial owners of shares representing in the aggregate not less than 5% of the shares of the bank or 5% of the shares of a class of its shares entitled to vote at the meeting at which the proposal is to be presented.
Marginal note:Exemption
(5) A bank is not required to comply with subsections (2) and (3) if
(a) the proposal is not submitted to the bank at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in respect of 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 bank 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 bank;
(c) the person submitting the proposal failed within the prescribed period before the bank receives their proposal to present, in person or by proxy, at a meeting of shareholders a proposal that at their request had been set out in or attached to a management proxy circular;
(d) substantially the same proposal was set out in or attached to a management proxy circular or dissident’s proxy circular relating to, and presented to shareholders at, a meeting of shareholders held within 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 subsections (1) to (4) are being abused to secure publicity.
Marginal note:Bank may refuse to include proposal
(5.1) If a person who submits a proposal fails to continue to hold or own shares in accordance with paragraph (1.1)(a) or, as the case may be, does not continue to have the support of persons who are in the aggregate the registered holders or beneficial owners of the prescribed number of shares in accordance with paragraph (1.1)(b) until the end of the meeting, the bank is not required to set out any proposal submitted by that person in or attach it to a management proxy circular for any meeting held within the prescribed period after the day of the meeting.
21. (1) Subsections 144(1) and (2) of the Act are replaced by the following:
Marginal note:Notice of refusal
144. (1) If a bank refuses to include a proposal in a management proxy circular, it shall in writing notify the person submitting the proposal of its intention to omit the proposal from the management proxy circular and of the reasons for the refusal. It shall notify the person within the prescribed period after either the day on which it receives the proposal or, if it has requested proof under subsection 143(1.4), the day on which it receives the proof.
Marginal note:Application to court
(2) On the application of a person submitting a proposal who claims to be aggrieved by a bank’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 144(3) of the French version of the Act is replaced by the following:
Marginal note:Demande de la banque
(3) La banque ou toute personne qui prétend qu’une proposition lui cause un préjudice peut demander au tribunal une ordonnance autorisant la banque à ne pas la faire figurer à la circulaire de la direction sollicitant des procurations ou en annexe; le tribunal, s’il est convaincu que le paragraphe 143(5) s’applique, peut rendre en l’espèce la décision qu’il estime pertinente.
Marginal note:2001, c. 9, s. 65
22. (1) Subsections 145(1) to (3) of the Act are replaced by the following:
Marginal note:List of shareholders entitled to notice
145. (1) A bank shall prepare an alphabetical list of 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 137(5)(c), no later than 10 days after that date; and
(b) if no record date is fixed, on the record date determined under paragraph 137(6)(a).
Marginal note:Voting list
(2) The bank 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 137(5)(d), no later than 10 days after that date; and
(b) if no record date is fixed under paragraph 137(5)(d), no later than 10 days after a record date is fixed under paragraph 137(5)(c) or no later than the record date determined under paragraph 137(6)(a), as the case may be.
Marginal note:Entitlement to vote
(3) Subject to section 156.09, a shareholder whose name appears on a list prepared under subsection (2) is entitled to vote the shares shown opposite their name.
(2) The portion of subsection 145(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Examination of list
(4) A shareholder may examine the list of shareholders
23. Section 151 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 bank 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 shareholders under subsection 136(2) and entitled to vote at that meeting may vote by means of the telephonic, electronic or other communication facility that the bank has made available for that purpose.
Marginal note:Regulations
(5) The Governor in Council may make regulations respecting the manner of and conditions for voting at a meeting of shareholders by means of a telephonic, electronic or other communication facility.
24. Section 152 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.
25. Paragraph 153(3)(a) of the Act is replaced by the following:
(a) a record date has been fixed under paragraph 137(5)(c) and notice of it has been given under subsection 137(7);
26. Subsection 154(1) of the Act is replaced by the following:
Marginal note:Court may order meeting to be called
154. (1) A court may, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders 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. 10
27. (1) The definition “registrant” in section 156.01 of the Act is repealed.
Marginal note:1997, c. 15, s. 10
(2) The definition ““solicit” or “solicitation”” in section 156.01 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 156.04(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 156.07(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,
(vi) a communication for the purpose of obtaining the support of persons in accordance with paragraph 143(1.1)(b), or
(vii) a communication, other than a solicitation by or on behalf of the management of a bank, that is made to shareholders in the prescribed circumstances.
(3) Section 156.01 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 within the meaning of section 2 of the Cooperative Credit Associations Act, 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. 10
28. Subsection 156.04(2) of the Act is replaced by the following:
Marginal note:Exception
(2) The management of a bank is not required to send a form of proxy under subsection (1) if the bank
(a) is not a distributing bank; 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.
29. Section 156.05 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. 10
30. The portion of subsection 156.06(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. 10
31. Section 156.07 of the Act is replaced by the following:
Marginal note:Duty of intermediary
156.07 (1) Shares of a bank 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
156.071 The Governor in Council may make regulations respecting the conditions under which a bank is exempt from any of the requirements of sections 156.02 to 156.07.
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