Contents
- Her Excellency the Governor General in Council, on the rec…
- Interpretation
- Part 1 General
- Part 2 Corporate Names
- Part 2.1
- Part 3 Corporate Interrelationships
- Part 4 Insider Trading
- Part 5 Meetings of Shareholders
- Part 6 Shareholder Proposals
- Part 7 Proxies and Proxy Solicitation
- Part 8 Financial Disclosure
- Part 8.1 Fundamental Changes
- Part 8.2 Disclosure Relating to Diversity
- Part 9 Constrained Share Corporations
- Part 10 Rules of Procedure for Applications for Exemptions
- Part 11 Value of Total Financial Interest
- Part 12 Cancellation of Articles and Certificates
- Part 13 Prescribed Fees
- Coming into Force
- Schedule 1 (Subsection 2(1))
- Schedule 2 (Section 41)
- Schedule 3
- Schedule 4
- Schedule 5 (Subsections 97(1) and (2.1) and section 98)
Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subsection 261(1) of the Canada Business Corporations Act, hereby makes the annexed Canada Business Corporations Regulations, 2001.notenote
Interpretation
1#
In these Regulations, Act means the Canada Business Corporations Act.note
2#
(1)For the purpose of the definition distributing corporation in subsection 2(1) of the Act and subject to subsection (2), distributing corporation means
(a)a corporation that is a reporting issuer under any legislation that is set out in column 2 of an item of Schedule 1; or
(b)in the case of a corporation that is not a reporting issuer referred to in paragraph (a), a corporation
(i)that has filed a prospectus or registration statement under provincial legislation or under the laws of a jurisdiction outside Canada,
(ii)any of the securities of which are listed and posted for trading on a stock exchange in or outside Canada, or
(iii)that is involved in, formed for, resulting from or continued after an amalgamation, a reorganization, an arrangement or a statutory procedure, if one of the participating bodies corporate is a corporation to which subparagraph (i) or (ii) applies.
(2)A corporation that is subject to an exemption under provincial securities legislation, or to an order of the relevant provincial securities regulator that provides that the corporation is not a reporting issuer for the purposes of the applicable legislation, is not a distributing corporation for the purpose of the definition of that expression in subsection (1).
3#
In regulation 2 (Interpretation)—
(1)For the purpose of the definition going-private transaction in subsection 2(1) of the Act, going-private transaction means an amalgamation, arrangement, consolidation or other transaction involving a distributing corporation, other than an acquisition of shares under section 206 of the Act, that results in the interest of a holder of participating securities of the corporation being terminated without the consent of the holder and without the substitution of an interest of equivalent value in participating securities of the corporation or of a body corporate that succeeds to the business of the corporation, which participating securities have rights and privileges that are equal to or greater than the affected participating securities.
(2)For the purpose of subsection (1), participating securities means securities of a body corporate that give the holder of the securities a right to share in the earnings of the body corporate and after the liquidation, dissolution or winding up of the body corporate, a right to share in its assets.
Part 1 · General
Electronic Documents
6#
For the purpose of section 252.2 of the Act, the prescribed notices, documents or other information are the notices, documents or other information referred to in sections 48 to 81 of the Act.
7#
(1)For the purpose of paragraph 252.3(2)(a) of the Act, the consent shall be in writing.
(2)For the purpose of paragraph 252.3(2)(b) of the Act, a notice, document or other information that is not required under the Act to be sent to a specific place may be sent as an electronic document to a place other than to an information system designated by the addressee under paragraph 252.3(2)(a) of the Act by posting it on or making it available through a generally accessible electronic source, such as a website, and by providing the addressee with notice in writing of the availability and location of that electronic document.
(3)[Repealed, SOR/2010-128, s. 5] (repealed)
8#
For the purposes of subsection 252.3(3) of the Act, an addressee shall revoke his or her consent in writing.
9#
For the purpose of paragraphs 252.4(b) and 252.5(2)(b) of the Act, when a notice, document or other information is provided to several addressees, the notice, document or other information shall be provided to the addressees concurrently, regardless of the manner of provision.
10#
An electronic document is considered to have been provided when it leaves an information system within the control of the originator or another person who provided the document on the originator’s behalf.note
11#
An electronic document is considered to have been received
(a)if the document is provided to the information system designated by the addressee, when it enters that information system; or
(b)if the document is posted on or made available through a generally accessible electronic source, when the notice of the availability and location of the electronic document referred to in section 7 is received by the addressee or, if the notice is sent electronically, when the notice enters the information system designated by the addressee.
Resident Canadian Class of Persons Prescribed
13#
For the purpose of paragraph (b) of the definition resident Canadian in subsection 2(1) of the Act, the following classes of persons are prescribed:
(a)persons who are full-time employees of the Government of Canada or of a province, of an agency of any of those governments or of a federal or provincial Crown corporation, if the principal reason for their residence outside Canada is to act as employees;
(b)persons who are full-time employees, if the principal reason for their residence outside Canada is to act as employees, of a body corporate
(i)of which more than 50% of the voting shares is beneficially owned, or over which control or direction is exercised, by resident Canadians,
(ii)a majority of the directors of which are resident Canadians, or
(iii)that is a subsidiary of a body corporate described in subparagraph (i) or (ii);
(c)persons who are full-time students at a university or other educational institution recognized by the educational authorities of a majority of the provinces of Canada and who have been resident outside Canada for fewer than 10 consecutive years;
(d)persons who are full-time employees of an international association or organization of which Canada is a member; and
(e)persons who were, at the time of reaching their 60th birthday, ordinarily resident in Canada and who have been resident outside Canada for fewer than 10 consecutive years.
Exemption Circumstances Prescribed
Keeping and Producing Documents
14.1#
For the purpose of subsection 225(1) of the Act, the prescribed period is six years beginning on the day on which the corporation is dissolved.note
15#
(1)For the purpose of subsection 267(3) of the Act, the prescribed documents and classes of documents are
(a)a notice of registered office referred to in subsection 19(2) of the Act;
(b)a notice of change of address referred to in subsection 19(4) of the Act;
(c)a notice of directors referred to in subsection 106(1) of the Act;
(d)a notice of change referred to in subsection 113(1) of the Act; and
(e)letters patent and supplementary letters patent.
(2)For the purpose of subsection 267(3) of the Act, the prescribed periods are
(a)in respect of a proxy circular referred to in subsection 150(1) of the Act, a document containing the information referred to in subsection 72.2(4) of these Regulations and an application for exemption referred to in section 88 of these Regulations, six years beginning on the day on which the document is received by the Director;
(b)in respect of a copy of the documents sent under subsection 160(1) of the Act, three years beginning on the day on which the copy is received by the Director;
(c)in respect of a document evidencing the satisfaction of the Director for the purpose of subsection 188(1) of the Act, two years beginning on the day on which the document is issued by the Director; and
(d)in respect of an annual return referred to in section 263 of the Act, two years beginning on the day on which the document is received by the Director.
Business Sectors
Part 2 · Corporate Names
Interpretation
17#
(1)The following definitions apply in this Part.
corporate name [Repealed, SOR/2022-40, s. 5]
deceptively misdescriptive means, in respect of a corporate name, that the name is likely to mislead the public, in any language, with respect to any of the following:
(a)the business, goods or services in association with which it is proposed to be used;
(b)the conditions under which the goods or services will be produced or supplied or the persons to be employed in the production or supply of the goods or services; and
(c)the place of origin of the goods or services. (fausse et trompeuse)
distinctive, in relation to a trade-name, considered as a whole and by its separate elements, means a trade-name that distinguishes the business in association with which it is used or intended to be used by its owner from any other business or that is adapted to so distinguish them. (distinctive)
official mark means an official mark referred to in subparagraph 9(1)(n)(iii) of the Trademarks Act. (marque officielle)
trademark means a trademark as defined in section 2 of the Trademarks Act. (marque de commerce)
trade-name means a name that has been reserved by the Director under subsection 11(1) of the Act, or the name under which a business is carried on, or intended to be carried on, whether it is a corporate name or the name of a body corporate, trust, partnership, sole proprietorship or individual. (dénomination commerciale)
(2)For greater certainty, this Part applies to the corporate name of an amalgamated corporation.
Reserving Name
Confusing Names
18#
A corporate name is confusing with
(a)a trademark or an official mark if it is the same as that trademark or official mark or if the use of both the corporate name and either the trademark or the official mark, as the case may be, is likely to lead to the inference that the business carried on or intended to be carried on under the corporate name and the business connected with the trademark or official mark, as the case may be, are one business, whether or not the nature of the business of each is generally the same; or
(b)a trade-name if it is the same as that trade-name or if the use of both names is likely to lead to the inference that the business carried on or intended to be carried on under the corporate name and the business carried on under the trade-name are one business, whether or not the nature of the business of each is generally the same.
note
19#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if its use causes confusion with a trademark, official mark or trade-name, having regard to the circumstances, including
(a)the inherent distinctiveness of the whole or any element of the trademark, official mark or trade-name and the extent to which it has become known;
(b)the length of time that the trademark, official mark or trade-name has been in use;
(c)the nature of the goods, services or business with which the trademark, official mark or trade-name is associated;
(d)the nature of the trade with which the trademark, official mark or trade-name is associated;
(e)the degree of resemblance between the proposed corporate name and the trademark, official mark or trade-name in appearance or sound or in the ideas suggested by them; and
(f)the geographical area in Canada in which the trade name or proposed corporate name is likely to be used.
note
19.1#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if it is confusing with a name that is reserved under subsection 11(1) of the Act, unless the person for whom the name was reserved consents in writing to the use of the name.note
20#
Despite section 19, a corporate name that is confusing with the name of a body corporate that has not carried on business in the two years immediately before the day on which the Director receives a document referred to in subsection 8(1), section 178 or subsection 185(4), 187(4), 191(5), 192(7) or 209(3) of the Act or a request to reserve a name under subsection 11(1) of the Act is not prohibited for that reason alone if
(a)the body corporate has been dissolved; or
note
21#
Despite section 19, if a word in a corporate name is confusing with the distinctive element of a trademark, official mark or trade-name, the corporate name is not prohibited for that reason alone if the person who owns the trademark, official mark or trade-name consents in writing to the use of the corporate name.note
22#
(1)Despite section 19, a corporate name that is confusing with the name of a body corporate is not prohibited for that reason alone if
(a)the corporate name is the name of an existing or a proposed corporation that is the successor to the business of the body corporate and the body corporate has ceased or will, in the immediate future, cease to carry on business under that corporate name and undertakes in writing to dissolve or to change its name before the successor corporation begins carrying on business under that name; and
(b)the corporate name of the existing or proposed corporation sets out in numerals the year of incorporation, or the year of the most recent amendment to the corporate name, in parentheses, immediately before the word or expression “Limited”, “Limitée”, “Incorporated”, “Incorporée”, “Corporation”, “Société par actions de régime fédéral” or “Société commerciale canadienne” or the abbreviation “Ltd.”, “Ltée”, “Inc.”, “Corp.”, “S.A.R.F.” or “S.C.C.”.
(2)If a corporate name is changed so that the reference to the year of incorporation or the year of the most recent amendment to the corporate name is deleted at least two years after it is introduced, it is not prohibited for that reason alone.
23#
Despite section 19, if the corporate name of an amalgamated corporation is the same as the name of one of the amalgamating corporations, it is not prohibited for that reason alone.note
24#
(1)Despite section 19, the corporate name of an existing corporation that is the same as the name of an affiliated body corporate from which the corporation has acquired or will, in the immediate future, acquire all or substantially all of the property of the body corporate is not prohibited for that reason alone if the body corporate undertakes in writing to dissolve, or to change its name, before the corporation begins using the corporate name.
(2)Despite section 19, if the corporate name of a proposed corporation is the same as the name of a body corporate that is to be an affiliate of the proposed corporation from which the proposed corporation will, in the immediate future, acquire all or substantially all of the property of the body corporate, the corporate name is not prohibited for that reason alone if the body corporate undertakes in writing to dissolve, or to change its name, before the proposed corporation begins using the corporate name.
General Prohibitions
25#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if the name contains any of the following elements:
(a)“cooperative”, “coopérative” or “co-op” when it connotes a cooperative venture;
(b)“Parliament Hill” or “Colline du Parlement”;
(c)“Royal Canadian Mounted Police”, “Gendarmerie royale du Canada”, “RCMP” or “GRC”; and
(d)“United Nations”, “Nations Unies”, “UN” or “ONU”, if it connotes a relationship to the United Nations.
note
26#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if it connotes that the corporation
(a)carries on business under royal, vice-regal or governmental patronage, approval or authority, unless Her Majesty or a person, society, authority or organization referred to in paragraph 9(2)(a) of the Trademarks Act consents in writing to the use of the name;
(b)is sponsored or controlled by or is connected with the Government of Canada, the government of a province, the government of a country other than Canada or a political subdivision or agency of any such government, unless the appropriate government, political subdivision or agency consents in writing to the use of the name;
(c)is sponsored or controlled by or is connected with a university or an association of accountants, architects, engineers, lawyers, physicians or surgeons or another professional association recognized by the laws of Canada or a province, unless the appropriate university or professional association consents in writing to the use of the name;
(d)carries on the business of a bank, loan company, insurance company, trust company or another financial intermediary that is regulated by the laws of Canada, unless the Superintendent of Financial Institutions confirms in writing that the words that are used in the name and that are regulated by section 983 of the Bank Act, section 47 of the Insurance Companies Act or section 47 of the Trust and Loan Companies Act are authorized to be used under the applicable Act; or
(e)carries on the business of a stock exchange that is regulated by the laws of a province, unless the relevant provincial securities regulator consents in writing to the use of the name.
note
27#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if it contains a word or phrase, or connotes a business, that is obscene.note
28#
(1)For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if an element of the name is the family name – whether or not it is preceded by the given name or initials – of an individual who is living or has died within 30 years before the day on which the Director receives the document referred to in subsection 8(1), section 178 or subsection 185(4), 187(4), 191(5), 192(7) or 209(3) of the Act or a request to reserve the name under subsection 11(1) of the Act.
(2)Despite subsection (1), the corporate name is not prohibited if
(a)the individual or their heir or personal representative consents in writing to the use of the individual’s name and the individual has or had a material interest in the corporation; or
(b)the person proposing to use the corporate name establishes that it has been used in Canada or elsewhere by them or their predecessors so as to have become distinctive in Canada.
29#
For greater certainty, a corporate name is not prohibited only because it contains alphabetic or numeric characters, initials, punctuation marks or any combination of those elements.note
Non-distinctive Names
30#
(1)For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if it
(a)is only descriptive, in any language, of the business of the corporation, of the goods and services in which the corporation deals or intends to deal, or of the quality, function or other characteristic of those goods and services;
(b)is primarily or only the name — or the first name or family name used alone — of an individual; or
(c)is primarily or only a geographic name that is used alone.
(2)Despite subsection (1), the corporate name is not prohibited if a person proposing to use the corporate name establishes that it has been used in Canada or elsewhere by them or by their predecessors so as to have become distinctive in Canada.
Deceptively Misdescriptive Names
31#
For the purpose of subsection 12(1) of the Act, a corporate name is prohibited if it is deceptively misdescriptive.note
Combined Form of Corporate Name
32#
For the purpose of subsection 10(3) of the Act, a combined English and French form of the name of a corporation shall include, from among the words and expressions set out in subsection 10(1) of the Act, only the expression “Inc.” which is to be placed at the end of the corporate name.note
Part 2.1
33#
(1)For the purpose of subsection 21.1(2) of the Act, reasonable steps taken by a corporation include sending a request for information
(a)to any individuals listed in the register as individuals with significant control;
(b)to its shareholders; and
(c)to any other person that the corporation has reasonable grounds to believe may have relevant knowledge with respect to
(i)an individual with significant control over the corporation, or
(ii)another person that may have relevant knowledge with respect to such an individual.
(2)The corporation shall request that a person referred to in subsection (1) provide the corporation with the following information as soon as feasible and to the best of their knowledge:
(a)in the case of an individual referred to in paragraph (1)(a), any change to the information in the register about them;
(b)in the case of a shareholder referred to in paragraph (1)(b), confirmation as to whether or not they have become an individual with significant control over the corporation; and
(c)any contact information that they have with respect to a person referred to in subparagraph (1)(c)(i) or (ii).
34#
For the purpose of paragraph 21.1(7)(c) of the Act, the following classes of corporations are prescribed:
(a)wholly-owned subsidiary corporations of either a corporation or a body corporate
(i)that is a reporting issuer or an émetteur assujetti under an Act of the legislature of a province relating to the regulation of securities, or
(ii)any of the securities of which are listed and posted for trading on a designated stock exchange, as defined in subsection 248(1) of the Income Tax Act;
(b)federal Crown corporations;
(c)provincial Crown corporations;
(d)corporations whose shareholders consist solely of either
(i)His Majesty in right of more than one province, or
(ii)His Majesty in right of Canada and His Majesty in right of one or more provinces; and
(e)wholly-owned subsidiary corporations of a corporation described in paragraph (b), (c) or (d).
note
34.1#
For the purpose of section 21.2 of the Act, a corporation to which section 21.1 of the Act applies that is unable to identify any individuals with significant control over the corporation must set out the following in its register of individuals with significant control:
(a)a statement to the effect that the corporation has determined that
(i)it is unable to identify any of the individuals with significant control over the corporation, or
(ii)there are no individuals with significant control over the corporation; and
(b)a summary of the steps taken to try to identify these individuals.
note
Part 3 · Corporate Interrelationships
Interpretation
35#
The following definitions apply in this Part.
particular subsidiary means a subsidiary body corporate referred to in subsection 31(4) of the Act. (filiale donnée)
Prescribed Conditions
36#
For the purpose of subsection 31(4) of the Act, the prescribed conditions are that
(a)the consideration received by the corporation for the delivery shares is equal to the fair market value of those shares at the time of their issuance;
(b)the class of shares of which the delivery shares are a part is widely held and shares of that class are actively traded on any of the following stock exchanges in Canada, namely,
(i)the Canadian Venture Exchange,
(ii)The Montreal Exchange, or
(iii)the Toronto Stock Exchange;
(c)the sole purpose of effecting the acquisition by the particular subsidiary of delivery shares is to transfer them, as set out in paragraph 37(b), to the shareholders of another body corporate;
(d)immediately before the acquisition of the delivery shares by the particular subsidiary, the other body corporate and its shareholders deal at arm’s length, to be determined in accordance with the Income Tax Act, with the corporation and the particular subsidiary; and
(e)immediately before the acquisition of the delivery shares by the particular subsidiary, the particular subsidiary and the other body corporate are not resident in Canada, for the purposes of the Income Tax Act.
37#
For the purposes of subsection 31(5) of the Act, the prescribed conditions are that
(a)the particular subsidiary does not acquire a beneficial interest in the delivery shares as a result of its acquisition of those shares and the beneficial interest is acquired by the shareholders of the other body corporate;
(b)the acquisition by the particular subsidiary of the delivery shares is followed immediately by a transfer of the delivery shares by the particular subsidiary to shareholders of the other body corporate;
(c)immediately after the transfer of the delivery shares to the shareholders of the other body corporate, the particular subsidiary and the other body corporate are not resident in Canada, for the purposes of the Income Tax Act; and
(d)after the transfer of the delivery shares to the shareholders of the other body corporate, the other body corporate is a subsidiary body corporate of the particular subsidiary.
38#
For the purpose of subsection 31(6) of the Act, the prescribed consequences are that within 30 days after one of the conditions described in section 36 or 37 is not met or ceases to be met, the corporation shall
(a)cancel the delivery shares on condition that, if the articles of the corporation limit the number of authorized shares, the delivery shares may be restored to the status of authorized but unissued shares;
(b)return the consideration received by the corporation for the delivery shares to the particular subsidiary; and
(c)cancel the entry for the consideration in the corporation’s stated capital account.
note
Part 4 · Insider Trading
39#
For the purpose of paragraph 126(2)(a) of the Act, the prescribed percentage of voting rights is 10%.
40#
For the purpose of paragraph 131(1)(d) of the Act, the prescribed percentage of voting rights is 10%.
41#
For the purpose of subsection 131(3) of the Act, take-over bid means take-over bid under any legislation that is set out in column 2 of an item of Schedule 2.note
42#
For the purpose of paragraph 131(4)(c) of the Act, the prescribed circumstances are that the insider
(a)entered into the purchase or sale as an agent or mandatary pursuant to a specific unsolicited order to purchase or sell;
(b)made the purchase or sale pursuant to participation in an automatic dividend reinvestment plan, share purchase plan or other similar automatic plan that the insider entered into before the acquisition of the confidential information;
(c)made the purchase or sale to fulfil a legally binding obligation that the insider entered into before the acquisition of the confidential information; or
(d)purchased or sold the security as agent, mandatary or trustee in the circumstances described in paragraph (b) or (c).
note
Part 5 · Meetings of Shareholders
Record Date
43#
(1)For the purpose of paragraphs 134(1)(a), (b) and (e) of the Act, the prescribed period for the directors to fix the record date is not more than 60 days before the day on which the particular action is to be taken.
(2)For the purposes of paragraphs 134(1)(c) and (d) of the Act, the prescribed period for the directors to fix the record date is not less than 21 days and not more than 60 days before the date of the meeting.
(3)For the purpose of subsection 134(3) of the Act, the prescribed period for the directors to provide notice of the record date is at least seven days before the date fixed.
Notice of Meetings
Communication Facilities
45#
(1)For the purpose of subsection 141(3) of the Act, when a vote is to be taken at a meeting of shareholders, the voting may be carried out by means of a telephonic, electronic or other communication facility, if the facility
(a)enables the votes to be gathered in a manner that permits their subsequent verification; and
(b)permits the tallied votes to be presented to the corporation without it being possible for the corporation to identify how each shareholder or group of shareholders voted.
(2)For the purpose of subsection 141(4) of the Act, a person who is entitled to vote at a meeting of shareholders may vote by means of a telephonic, electronic or other communication facility, if the facility
(a)enables the vote to be gathered in a manner that permits its subsequent verification; and
(b)permits the tallied vote to be presented to the corporation without it being possible for the corporation to identify how the person voted.
Separate Vote for Each Candidate
Appointment of Directors
Part 6 · Shareholder Proposals
46#
For the purpose of subsection 137(1.1) of the Act,
(a)the prescribed number of shares is the number of voting shares
(i)that is equal to 1% of the total number of the outstanding voting shares of the corporation, as of the day on which the shareholder submits a proposal, or
(ii)whose fair market value, as determined at the close of business on the day before the shareholder submits the proposal to the corporation, is at least $2,000; and
(b)the prescribed period is the six-month period immediately before the day on which the shareholder submits the proposal.
note
47#
For the purpose of subsection 137(1.4) of the Act,
(a)a corporation may request that a shareholder provide the proof referred to in that subsection within 14 days after the corporation receives the shareholder’s proposal; and
(b)the shareholder shall provide the proof within 21 days after the day on which the shareholder receives the corporation’s request or, if the request was mailed to the shareholder, within 21 days after the postmark date stamped on the envelope containing the request.
note
48#
For the purpose of subsection 137(3) of the Act, a proposal and a statement in support of it shall together consist of not more than 500 words.
49#
For the purpose of paragraph 137(5)(a) of the Act, the prescribed period is the 60-day period that begins on the 150th day before the anniversary of the previous annual meeting of shareholders.note
50#
For the purpose of paragraph 137(5)(c) of the Act, the prescribed period before the receipt of a proposal is two years.
51#
(1)For the purpose of paragraph 137(5)(d) of the Act, the prescribed minimum amount of support for a shareholder’s proposal is
(a)3% of the total number of shares voted, if the proposal was introduced at an annual meeting of shareholders;
(b)6% of the total number of shares voted at its last submission to shareholders, if the proposal was introduced at two annual meetings of shareholders; and
(c)10% of the total number of shares voted at its last submission to shareholders, if the proposal was introduced at three or more annual meetings of shareholders.
(2)For the purpose of paragraph 137(5)(d) of the Act, the prescribed period is five years.
Part 7 · Proxies and Proxy Solicitation
Form of Proxy
54#
In this Part, NI 51-102 means the version of National Instrument 51-102 that applies within a province set out in column 1 of the table to this section in accordance with the instrument set out in column 2. | Column 1 | Column 2Item | Province | Instrument1 | Ontario | National Instrument 51-102 Continuous Disclosure Obligations, made a rule of the Ontario Securities Commission and published on April 2, 2004, (2004) 27 OSCB 3439, as amended from time to time2 | Quebec | Regulation 51-102 respecting Continuous Disclosure Obligations, CQLR c. V-1.1, r. 24, as amended from time to time3 | Nova Scotia | National Instrument 51-102 Continuous Disclosure Obligations, made a rule of the Nova Scotia Securities Commission and published in the Nova Scotia Royal Gazette, Part 1, on March 15, 2004, as amended from time to time4 | New Brunswick | National Instrument 51-102 Continuous Disclosure Obligations, made a rule of the Financial and Consumer Services Commission and which came into force on February 19, 2015, as amended from time to time5 | Manitoba | Manitoba Securities Commission Rule 2003-17, National Instrument 51-102 Continuous Disclosure Obligations, as amended from time to time6 | British Columbia | National Instrument 51-102 Continuous Disclosure Obligations, B.C. Reg. 110/2004, as amended from time to time7 | Saskatchewan | National Instrument 51-102 Continuous Disclosure Obligations, set out in Part XXXVI of the Appendix to The Securities Commission (Adoption of National Instruments) Regulations, RRS c. S-42.2, Reg 3, as amended from time to time8 | Alberta | National Instrument 51-102 Continuous Disclosure Obligations, made a rule of the Alberta Securities Commission and published in the Alberta Gazette, Part 1, on March 15, 2004, as amended from time to timenote
54.1#
(1)For the purpose of subsection 149(1) of the Act and subject to subsection (2), a form of proxy shall be in a form that complies with the requirements set out in section 9.4 of NI 51-102.
(2)In the case of a vote by shareholders that occurs in the circumstances described in subsection 106(3.4) of the Act,
(a)paragraph 6 of section 9.4 of NI 51-102 is to be read without reference to the election of directors; and
(b)the form of proxy shall allow the shareholder to specify, for each candidate nominated for director, whether their vote is to be cast for or against the candidate.
note
Management Proxy Circular
55#
(1)Subject to subsection (3), a management proxy circular shall be in the form provided for in Form 51-102F5 (Information Circular) of NI 51-102, which form, in the circumstances described in Item 8 of Part 2 of that Form, includes the statement referred to in that Item.
(2)A management proxy circular shall also set out the following:
(a)the percentage of votes required for the approval of any matter that is to be submitted to a vote of shareholders at the meeting, other than the election of directors;
(b)a statement of the right of a shareholder to dissent under section 190 of the Act with respect to any matter to be acted on at the meeting and a brief summary of the procedure to be followed to exercise that right;
(c)a statement, signed by a director or an officer of the corporation, that the contents and the sending of the circular have been approved by the directors; and
(d)a statement indicating the final date by which the corporation must receive a proposal for the purpose of paragraph 137(5)(a) of the Act.
(3)A management proxy circular for a non-distributing corporation is not required to set out the information provided for in Part 1(c) or Item 9, 10 or 16 of Part 2 of Form 51-102F5 (Information Circular) of NI 51-102, or the statement referred to in Item 8 of Part 2 of that Form.
56#
For the purpose of subsection 150(2) of the Act, the prescribed form of statement that shall accompany the copy of the management proxy circular to be sent to the Director under that subsection is a statement signed by a director or an officer of the corporation, to the effect that a copy of the circular has been sent to each director, to each shareholder whose proxy has been solicited and to the auditor of the corporation.note
Dissident’s Proxy Circular
57#
(1)A dissident’s proxy circular shall be in the form provided for in Form 51-102F5 (Information Circular) of NI 51-102, which form, in the circumstances described in Item 8 of Part 2 of that Form, includes the statement referred to in that Item.
(2)A dissident’s proxy circular for a non-distributing corporation is not required to set out the information provided for in Part 1(c) or Item 9, 10 or 16 of Part 2 of Form 51-102F5 (Information Circular) of NI 51-102, or the statement referred to in Item 8 of Part 2 of that Form.
63#
Information that is not known to a dissident and that cannot be ascertained by them on reasonable inquiry may be omitted from a dissident’s proxy circular, but the circumstances that render the information unavailable shall be disclosed in the proxy circular.
64#
(1)A dissident’s proxy circular shall contain a statement signed by the dissident or a person authorized by them that the contents and the sending of the circular have been approved by the dissident.
(2)For the purpose of subsection 150(2) of the Act, the prescribed form of statement that shall accompany the copy of the dissident’s proxy circular to be sent to the Director under that subsection is a statement signed by the dissident or a person authorized by them, to the effect that a copy of the circular has been sent to each director, to each shareholder whose proxy has been solicited, to the auditor of the corporation and to the corporation.
Financial Statements in Proxy Circular
66#
(1)If financial statements accompany or form part of a management proxy circular, the statements shall be prepared in the manner described in Part 8.
(2)The financial statements referred to in subsection (1), if not reported on by the auditor of the corporation, shall be accompanied by a report of the chief financial officer of the corporation stating that the financial statements have not been audited but have been prepared in the manner described in Part 8.
Proxy Circular Exemptions
67#
For the purpose of subparagraph (b)(v) of the definition solicit or solicitation in section 147 of the Act, a solicitation does not include a public announcement that is made by
(a)a speech in a public forum; or
(b)a press release, an opinion, a statement or an advertisement provided through a broadcast medium or by a telephonic, electronic or other communication facility, or appearing in a newspaper, a magazine or other publication generally available to the public.
68#
(1)For the purpose of subparagraph (b)(vii) of the definition solicit or solicitation in section 147 of the Act, the prescribed circumstances are circumstances in which the communication is made to shareholders
(a)by one or more shareholders and concerns the business and affairs of a corporation — including its management or proposals contained in a management proxy circular — and no form of proxy is sent to those shareholders by the shareholder or shareholders making the communication or by a person acting on their behalf;
(b)by one or more shareholders and concerns the organization of a dissident’s proxy solicitation, and no form of proxy is sent to those shareholders by the shareholder or shareholders making the communication or by a person acting on their behalf;
(c)as clients, by a person who gives financial, corporate governance or proxy voting advice in the ordinary course of business and concerns proxy voting advice if
(i)the person discloses to the shareholder any significant relationship with the corporation and any of its affiliates or with a shareholder who has submitted a proposal pursuant to subsection 137(1) of the Act and any material interests the person has in relation to a matter on which advice is given,
(ii)the person receives any special commission or remuneration for giving the proxy voting advice only from the shareholder or shareholders receiving the advice, and
(iii)the proxy voting advice is not given on behalf of any person soliciting proxies or on behalf of a nominee for election as a director; or
(d)by a person who does not seek directly or indirectly, the power to act as proxy for a shareholder.
(2)The circumstances described in paragraph (1)(a) are not prescribed circumstances if the communication is made by
(a)a shareholder who is an officer or director of the corporation, or who serves in a similar capacity, if the communication is financed directly or indirectly by the corporation;
(b)a shareholder who is a nominee or who proposes a nominee for election as a director, if the communication relates to the election of directors;
(c)a shareholder whose communication is in opposition to an amalgamation, arrangement, consolidation or other transaction recommended or approved by the board of directors of the corporation and who is proposing or intends to propose an alternative transaction to which the shareholder or an affiliate or associate of the shareholder is a party;
(d)a shareholder who, because of a material interest in the subject-matter to be voted on at a shareholders meeting, is likely to receive a benefit from its approval or non-approval, which benefit would not be shared pro rata by all other holders of the same class of shares, unless the benefit arises from the shareholder’s employment with the corporation; or
(e)any person acting on behalf of a shareholder described in any of paragraphs (a) to (d).
note
69#
(1)For the purpose of subsection 150(1.2) of the Act, the prescribed circumstances are those in which the solicitation conveyed by public broadcast, speech or publication sets out the information provided for in Items 3.2, 3.4, 5(b) and 11 of Part 2 of Form 51-102F5 (Information Circular) of NI 51-102.
(2)A person making a solicitation referred to in subsection (1) shall send the required information and a copy of any related written communication to the Director and to the corporation before soliciting proxies.
Part 8 · Financial Disclosure
Interpretation
70#
The following definitions apply in this Part.
Canadian GAAP means generally accepted accounting principles as set out in the CPA Canada Handbook – Accounting or the CPA Canada Public Sector Accounting Handbook, as amended from time to time. (PCGR canadiens)
Canadian GAAS means generally accepted auditing standards as set out in the CPA Canada Handbook – Assurance, as amended from time to time. (NVGR canadiennes)
Part V [Repealed, SOR/2016-98, s. 1]
SEC registrant means a corporation that
(a)has securities registered under section 12 of the Securities Exchange Act of 1934 of the United States, as amended from time to time, or is required to file reports under section 15(d) of that Act; and
(b)is not registered or required to be registered as an investment company under the Investment Company Act of 1940 of the United States, as amended from time to time. (société inscrite auprès de la SEC)
US GAAP means the generally accepted accounting principles established by the Financial Accounting Standards Board of the United States, as amended from time to time. (PCGR américains)
US GAAS means the generally accepted auditing standards established by the Public Company Accounting Oversight Board of the United States, as amended from time to time. (NVGR américaines)
note
Financial Statements
71#
(1)Subject to subsection (2), the annual financial statements referred to in paragraph 155(1)(a) of the Act shall be prepared in accordance with Canadian GAAP.
(2)For an SEC registrant, the financial statements may be prepared in accordance with US GAAP.
(3) to (6)[Repealed, SOR/2016-98, s. 2] (repealed)
(7)The financial statements shall contain a note stating whether the statements have been prepared in accordance with Canadian GAAP or US GAAP.
(8)[Repealed, SOR/2016-98, s. 2] (repealed)
Auditor’s Report
71.1#
(1)Subject to subsection (2), the auditor’s report referred to in section 169 of the Act shall be prepared in accordance with Canadian GAAS.
(2)For an SEC registrant that has prepared its financial statements in accordance with US GAAP and whose auditors are in compliance with the professional practice standards of the Public Company Accounting Oversight Board of the United States, the auditor’s report may be prepared in accordance with US GAAS.
(3)[Repealed, SOR/2016-98, s. 3] (repealed)
(4)If the auditor’s report referred to in subsection (2) is prepared in accordance with US GAAS and is for a financial year that begins on or after January 1, 2011, it shall comply with section 3.8 of NI 52-107, but for the purpose of applying that section,
(a)the expression U.S. PCAOB GAAS has the meaning assigned to the expression US GAAS by section 70 of these Regulations; and
(b)the expression SEC issuer has the meaning assigned to the expression SEC registrant by section 70 of these Regulations.
note
Contents of Financial Statements
72#
(1)The financial statements referred to in section 155 of the Act shall include at least
(a)a statement of financial position or a balance sheet;
(b)a statement of comprehensive income or an income statement;
(c)a statement of changes in equity or a statement of retained earnings; and
(d)a statement of cash flows or a statement of changes in financial position.
(2)Financial statements need not be designated by the names set out in paragraphs (1)(a) to (d).
Part 8.1 · Fundamental Changes
72.1#
(1)Despite subparagraph 184(1)(b)(ii) of the Act, the resolutions approving the amalgamation of a holding corporation with one or more of its subsidiary corporations may provide that the corporate name set out in the articles of amalgamation is not the same as that set out in the articles of the amalgamating holding corporation.
(2)Despite subparagraph 184(2)(b)(ii) of the Act, the resolutions approving the amalgamation of two or more wholly owned subsidiary corporations of the same holding body corporate may provide that the corporate name set out in the articles of amalgamation is not the same as that set out in the articles of the amalgamating subsidiary corporation whose shares are not cancelled.
note
Part 8.2 · Disclosure Relating to Diversity
72.2#
(1)The following definitions apply in this Part.
designated groups has the same meaning as in section 3 of the Employment Equity Act. (groupes désignés)
major subsidiary means, in respect of a distributing corporation, a subsidiary that
(a)has assets, as included in the distributing corporation’s most recent annual audited or interim balance sheet or most recent statement of financial position, that are 30 percent or more of the consolidated assets of the distributing corporation reported on that balance sheet or statement of financial position, as the case may be; or
(b)has revenue, as included in the distributing corporation’s most recent annual audited or interim income statement or most recent statement of comprehensive income, that is 30 percent or more of the consolidated revenue of the distributing company reported on that statement. (filiale importante)
(2)For the purposes of subsection 172.1(1) of the Act, a distributing corporation is a prescribed corporation.
(3)For the purpose of subsection 172.1(1) of the Act, members of senior management means, in respect of a distributing corporation, the following individuals:
(a)the chair and vice-chair of the board of directors;
(b)the president of the corporation;
(c)the chief executive officer and chief financial officer;
(d)the vice-president in charge of a principal business unit, division or function, including sales, finance or production; and
(e)an individual who performs a policy-making function in respect of the corporation.
(4)For the purpose of subsection 172.1(1) of the Act, the following information is prescribed:
(a)indication of whether or not the distributing corporation has adopted term limits for the directors on its board or other mechanisms of board renewal and, as the case may be, a description of those term limits or mechanisms or the reasons why it has not adopted them;
(b)indication of whether or not the distributing corporation has adopted a written policy relating to the identification and nomination of members of designated groups for directors and, if it has not adopted a written policy, the reasons why it has not adopted the policy;
(c)if the distributing corporation has adopted the written policy referred to in paragraph (b),
(i)a short summary of the policy’s objectives and key provisions,
(ii)a description of the measures taken to ensure that the policy is effectively implemented,
(iii)a description of the annual and cumulative progress by the distributing corporation in achieving the objectives of the policy, and
(iv)whether or not the board of directors or its nominating committee measures the effectiveness of the policy and, if so, a description of how it is measured;
(d)whether or not the board of directors or its nominating committee considers the level of the representation of designated groups on the board in identifying and nominating candidates for election or re-election to the board and, as the case may be, how that level is considered or the reasons why it is not considered;
(e)whether or not the distributing corporation considers the level of representation of designated groups when appointing members of senior management and, as the case may be, how that level is considered or the reasons why it is not considered;
(f)whether or not the distributing corporation has, for each group referred to in the definition designated groups, adopted a target number or percentage, or a range of target numbers or percentages, for members of the group to hold positions on the board of directors by a specific date and
(i)for each group for which a target has been adopted, the target and the annual and cumulative progress of the corporation in achieving that target, and
(ii)for each group for which a target has not been adopted, the reasons why the corporation has not adopted that target;
(g)whether or not the distributing corporation has, for each group referred to in the definition designated groups, adopted a target number or percentage, or a range of target numbers or percentages, for members of the group to be members of senior management by a specific date and,
(i)for each group for which a target has been adopted, the target and the annual and cumulative progress of the corporation in achieving that target, and
(ii)for each group for which a target has not been adopted, the reasons why the corporation has not adopted that target;
(h)for each group referred to in the definition designated groups, the number and proportion, expressed as a percentage, of members of each group who hold positions on the board of directors; and
(i)for each group referred to in the definition designated groups, the number and proportion, expressed as a percentage, of members of each group who are members of senior management of the distributing corporation, including all of its major subsidiaries.
note
Part 9 · Constrained Share Corporations
Interpretation
73#
The following definitions apply in this Part.
Canadian means
(a)a resident Canadian;
(b)a partnership of which a majority of the members are resident Canadians and in which interests representing more than 50% of the total value of the partnership property are owned by resident Canadians;
(c)a trust established by a resident Canadian
(i)a majority of the trustees of which are resident Canadians, or
(ii)in which beneficial interests representing more than 50% of the total value of the trust property are owned by resident Canadians;
(d)Her Majesty in right of Canada or of a province or territory of Canada or a municipal corporation or public board or commission in Canada; or
(e)a body corporate
(i)incorporated under the laws of Canada or a province,
(ii)of which a majority of the directors are resident Canadians, and
(iii)over which persons described in any of paragraphs (a) to (d) or in this paragraph exercise control or direction or of which the persons beneficially own shares or securities currently convertible into shares carrying more than 50% of the voting rights under all circumstances or by reason of the occurrence of an event that has occurred and that is continuing, including currently exercisable options or rights to acquire the shares or convertible securities. (Canadien)
constrained class means the class of persons specified in the articles of a constrained share corporation as being ineligible to hold, as a class, more than the maximum aggregate holdings. (catégorie restreinte)
constraint means a restriction on
(a)the issue or transfer of shares of any class or series to persons who are not resident Canadians;
(b)the issue or transfer of shares of any class or series to enable a corporation or any of its affiliates or associates to qualify under a law referred to in paragraph 87(1)(a)
(i)to obtain a licence to carry on any business,
(ii)to become a publisher of a Canadian newspaper or periodical, or
(iii)to acquire shares of a financial intermediary as defined in paragraph 87(1)(b); or
(c)the issue, transfer or ownership of shares of any class or series in order to assist a corporation or any of its affiliates or associates to qualify under a law referred to in subsection 87(2) to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control. (restriction)
maximum aggregate holdings means the total number of voting shares of a constrained share corporation that may be held by or on behalf of persons in the constrained class and their associates in accordance with the articles of the corporation. (avoir maximum total)
maximum individual holdings means the total number of voting shares of a constrained share corporation that may be held by or on behalf of any one person in the constrained class and their associates in accordance with the articles of the corporation. (avoir maximum individuel)
Disclosure Required
74#
Each of the following documents issued or published by a constrained share corporation shall indicate conspicuously the general nature of its constrained share provisions:
(a)a certificate representing a voting share;
(b)a management proxy circular; and
(c)a prospectus, statement of material facts, registration statement or similar document.
Powers and Duties of Directors
75#
(1)The directors of a constrained share corporation that has provisions in its articles imposing a constraint referred to in paragraph (a) or (b) of the definition constraint in section 73 shall refuse to register a transfer of a voting share of the corporation in accordance with the articles if
(a)the total number of voting shares held by or on behalf of persons in the constrained class exceeds the maximum aggregate holdings and the transfer is to a person in the constrained class;
(b)the total number of voting shares held by or on behalf of persons in the constrained class does not exceed the maximum aggregate holdings and the transfer would cause the number of shares held by persons in the constrained class to exceed the maximum aggregate holdings;
(c)the total number of voting shares held by or on behalf of a person in the constrained class exceeds the maximum individual holdings and the transfer is to that person; or
(d)the total number of voting shares held by or on behalf of a person in the constrained class does not exceed the maximum individual holdings and the transfer would cause the number of shares held by that person to exceed the maximum individual holdings.
(2)Despite subsection (1), the directors of a constrained share corporation that is described in that subsection shall register a transfer of a voting share of the corporation to a person in the constrained class if that person establishes that they were the beneficial owner of that share on the day on which the corporation became a constrained share corporation.
(3)The directors of a constrained share corporation that is described in subsection (1) shall not issue a voting share of the corporation to a person in the constrained class if the directors are required by that subsection to refuse to register a transfer of the share.
(4)For the purpose of subsection (3), the directors may count as issued shares the voting shares that the corporation is currently offering to its shareholders or prospective shareholders.
76#
The directors of a constrained share corporation that has provisions in its articles imposing a constraint referred to in paragraph (c) of the definition constraint in section 73
(a)shall not issue a share of the corporation to a person
(i)whose ownership of the share would be contrary to the constraint,
(ii)who, in respect of the issue of the share, has been requested by the corporation to provide it with information referred to in subsection 80(7) and has not provided the information, or
(iii)whose ownership of the share the directors have determined, on the basis of information provided to the corporation by that person under a request referred to in subparagraph (ii), may be contrary to the constraint; and
(b)shall refuse to register a transfer of a share of the corporation if the transfer is to a person
(i)whose ownership of the share is contrary to the constraint,
(ii)who, in respect of the registration of the share, has been requested by the corporation to provide it with information referred to in subsection 80(7) and has not provided the information, or
(iii)whose ownership of the share the directors have determined, on the basis of information provided to the corporation by that person under a request referred to in subparagraph (ii), may be contrary to the constraint.
Limitation on Voting Rights
77#
Sections 78 and 79 apply to a constrained share corporation that has provisions in its articles imposing a constraint referred to in paragraph (a) or (b) of the definition constraint in section 73.
78#
(1)If, on the day on which a corporation becomes a constrained share corporation, the total number of voting shares of the corporation held by or on behalf of a person in the constrained class exceeds the maximum individual holdings, the person or their nominee may only, in person or by proxy, exercise the voting rights attached to the maximum individual holdings so held on that day or on any later day.
(2)After the total number of shares held by or on behalf of the person referred to in subsection (1) is reduced below the maximum individual holdings, they or their nominee may, in person or by proxy, exercise the voting rights attached to shares held.
79#
(1)Except as provided in subsection 78(1), if the total number of voting shares of a constrained share corporation held by or on behalf of a person in the constrained class exceeds the maximum individual holdings, no person shall, in person or by proxy, exercise the voting rights attached to those shares.
(2)If it appears from the securities register of a constrained share corporation that the total number of voting shares held by a shareholder is less than the maximum individual holdings, a proxyholder for the shareholder may vote those shares unless the proxyholder has knowledge that the shares beneficially owned by the shareholder exceed the maximum individual holdings.
(3)If, after the day on which a corporation becomes a constrained share corporation, a corporation or trust that was not a person in the constrained class becomes a person in the constrained class, the corporation or trust shall not exercise the voting rights attached to any shares it holds in the constrained share corporation while it is a person in the constrained class.
Sale of Constrained Shares
80#
(1)For the purpose of subsection 46(1) of the Act, before a constrained share corporation concludes that shares of the corporation are owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73 or the directors of the corporation determine that shares of the corporation may be owned contrary to the constraint, the corporation shall send by registered mail a written notice in accordance with subsection (5) to the person shown in the securities register of the corporation as the holder of the shares.
(2)For the purpose of subsection 46(1) of the Act, in determining that shares of a constrained share corporation may be owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73, the directors of the corporation shall
(a)ascertain whether or not the corporation has received a reply to a request for information referred to in subsection (7) respecting the shares and consider the reply, if any, to the request; and
(b)examine and consider any other records of the corporation that contain information that would indicate whether the shares are owned contrary to the constraint.
(3)For the purpose of subsection 46(1) of the Act, if a constrained share corporation has sent a notice referred to in subsection (1) to a person shown in the securities register of the corporation as the holder of shares and the corporation intends to sell all or some of the shares under subsection 46(1) of the Act, the corporation shall, not less than 90 days but not more than 150 days after sending the notice, send to that person by registered mail a further written notice in accordance with subsection (6) respecting the shares that the corporation intends to sell, if
(a)the corporation has concluded that shares in respect of which the notice was sent are owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73; or
(b)the directors of the corporation have determined in accordance with subsection (2) that shares in respect of which the notice was sent may be owned contrary to the constraint.
(4)When a corporation sends a notice under subsection (1) or (3), it shall, at the time the notice is sent, enter or cause to be entered in the securities register of the corporation the particulars of the notice, including the date on which it was sent.
(5)The notice referred to in subsection (1) shall contain
(a)the name and address of the holder of the shares as shown in the securities register of the corporation;
(b)a statement that identifies the certificate that represents the shares, by certificate number or otherwise;
(c)a statement that indicates that all or some of the shares may be sold by the corporation under subsection 46(1) of the Act if the shares are owned, or the directors of the corporation determine in accordance with subsection (2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73;
(d)a statement that indicates that the corporation may conclude that all or some of the shares are owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73;
(e)a statement that indicates that the directors of the corporation may determine in accordance with subsection (2) that all or some of the shares may be owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73 and that, for the purpose of making the determination, the directors of the corporation will
(i)consider the reply, if any, to a request for information referred to in subsection (7) respecting the shares, and
(ii)examine and consider any other records of the corporation that contain information that would indicate whether the shares are owned contrary to the constraint;
(f)a statement that indicates that no share in respect of which the notice is sent may be sold under subsection 46(1) of the Act if a transfer of the share is registered in the securities register of the corporation after the notice was sent, unless the corporation again complies with the requirements set out in this Part respecting the sale of the share;
(g)a statement that indicates that no share in respect of which the notice is sent may be sold under subsection 46(1) of the Act unless not less than 60 days but not more than 150 days have elapsed after the day on which a notice referred to in subsection (3) is sent to the holder of the share;
(h)a statement that indicates the earliest date and the latest date on which the corporation may sell the shares, having regard to the requirements of section 82;
(i)a statement that indicates that the shares may be sold on any stock exchange if shares of the corporation are listed and posted for trading or, if shares of the corporation are not listed and posted for trading on a stock exchange, in any other manner that the directors of the corporation determine to be appropriate;
(j)a statement that indicates that, if not all the shares of the holder represented by a certificate are sold under subsection 46(1) of the Act, a certificate that represents the shares that are not sold will be issued on surrender for cancellation of the certificate that represents the shares sold; and
(k)a statement that indicates that, immediately after the sale of the shares under subsection 46(1) of the Act, the corporation will
(i)register the transfer or a notice of the sale of the shares or cause the transfer or a notice of the sale of the shares to be registered in the securities register of the corporation, and
(ii)send a notice of the sale in accordance with paragraph 83(1)(b) to the person shown in the securities register of the corporation as the holder of the shares at the time of sale.
(6)The notice referred to in subsection (3) shall contain
(a)the name and address of the holder of the shares as shown in the securities register of the corporation;
(b)a statement that identifies the certificate that represents the shares, by certificate number or otherwise;
(c)a statement that indicates that all or some of the shares may be sold by the corporation under subsection 46(1) of the Act if the shares are owned, or the directors of the corporation determine in accordance with subsection (2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73;
(d)a statement that indicates that the corporation has concluded that the shares are owned, or that the directors of the corporation have determined in accordance with subsection (2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73 and that indicates the reason why the corporation so concluded or the directors so determined, as the case may be;
(e)a statement that indicates that the corporation intends to sell all or a specified number of the shares under subsection 46(1) of the Act;
(f)a statement that indicates that, if before the sale the corporation changes its conclusion that the shares are owned, or the directors of the corporation change their determination made in accordance with subsection (2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73, or there is a change in the reason for the conclusion or determination, the corporation will send a notice in accordance with subsection 81(1) to the person shown in the securities register of the corporation as the holder of the shares;
(g)a statement that advises that, unless the person shown in the securities register of the corporation as the holder of the shares receives a notice referred to in paragraph (f), the person and all other interested persons should not assume that
(i)the corporation has changed its conclusion that the shares are owned, or the directors of the corporation have changed their determination made in accordance with subsection (2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73,
(ii)there has been a change in the reason for the conclusion or determination, or
(iii)the corporation no longer intends to sell the shares under subsection 46(1) of the Act;
(h)a statement that indicates that no share in respect of which the notice is sent may be sold under subsection 46(1) of the Act if a transfer of the share is registered in the securities register of the corporation after the notice referred to in subsection (1) was sent, unless the corporation again complies with the requirements set out in this Part respecting the sale of the share;
(i)a statement that indicates that no share in respect of which the notice is sent may be sold under subsection 46(1) of the Act unless not less than 60 days but not more than 150 days have elapsed from the day on which the notice was sent to the holder of the share; and
(j)a statement that indicates each of the matters referred to in paragraphs (5)(h) to (k).
(7)The notice referred to in subsection (1) shall be accompanied by a request for information as to whether or not the shares are owned contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73.
(8)The notice referred to in subsection (3) shall be accompanied by a request for information referred to in subsection (7), unless the corporation has received the requested information before the notice is sent.
(9)A request for information referred to in subsection (7) shall be accompanied by instructions for the provision of the information.
81#
(1)If a constrained share corporation has sent a notice referred to in subsection 80(3) and has not sold, under subsection 46(1) of the Act, any share in respect of which the notice was sent, and if the corporation changes its conclusion referred to in paragraph 80(3)(a) or its directors change their determination referred to in paragraph 80(3)(b) or if there is a change in the reason for the conclusion or determination, the corporation shall immediately send by registered mail to the recipient of that notice a notice of the change to the conclusion, to the determination or to the reason for the conclusion or determination, including the reason for the change.
(2)When a corporation sends a notice under subsection (1), the corporation shall, at the time the notice is sent, enter or cause to be entered in the securities register of the corporation the particulars of the notice, including the date on which it was sent.
note
82#
(1)No share shall be sold by a constrained share corporation under subsection 46(1) of the Act unless
(a)the corporation has sent the notices referred to in subsections 80(1) and (3) to the person shown in the securities register of the corporation as the holder of the share;
(b)not less than 150 days but not more than 300 days have elapsed from the day on which the notice referred to in subsection 80(1) was sent to the holder of the share;
(c)not less than 60 days but not more than 150 days have elapsed from the day on which the notice referred to in subsection 80(3) was sent to the holder of the share;
(d)the corporation has concluded that the share is owned, or the directors of the corporation have determined in accordance with subsection 80(2) that the share may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73 and, at the time of sale, the corporation has no reasonable grounds on which to change its conclusion or the directors of the corporation have no reasonable grounds on which to change their determination, as the case may be;
(e)the sale takes place
(i)on a stock exchange where shares of the corporation are listed and posted for trading, or
(ii)if shares of the corporation are not listed and posted for trading on a stock exchange, in any other manner that the directors of the corporation determine to be appropriate; and
(f)the corporation sells the share with a view to obtaining the best sale price available in the circumstances at the time of sale.
(2)No share in respect of which a notice is sent in accordance with subsection 80(1) shall be sold by a constrained share corporation under subsection 46(1) of the Act if a transfer of the share is registered in the securities register of the corporation after the notice was sent, unless the corporation again complies with the requirements set out in this Part respecting the sale of the share.
83#
(1)Immediately after a sale of shares by a constrained share corporation under subsection 46(1) of the Act, the corporation shall
(a)register the transfer or a notice of the sale of the shares or cause the transfer or a notice of the sale of the shares to be registered in the securities register of the corporation; and
(b)send a notice of the sale to the person shown in the securities register of the corporation as the holder of the shares at the time of the sale.
(2)The notice referred to in paragraph (1)(b) shall
(a)state the number of shares sold;
(b)identify the certificate that represents the shares sold, by certificate number or otherwise;
(c)state the date and manner of sale;
(d)state the manner in which the person entitled to receive the net proceeds of the sale under subsection 46(3) of the Act may obtain them;
(e)state that the corporation concluded that the shares were owned, or that the directors determined in accordance with subsection 80(2) that the shares may be owned, contrary to a constraint referred to in paragraph (c) of the definition constraint in section 73 and state the reason why the corporation so concluded or the directors so determined, as the case may be; and
(f)contain a statement, if not all of the shares of the holder represented by a certificate were sold, that not all of the shares were sold and that a certificate that represents the shares that were not sold will be issued on surrender for cancellation of the certificate that represents the shares sold.
note
84#
For the purpose of subsection 47(1) of the Act, the proceeds of a sale by a constrained share corporation under subsection 46(1) of the Act shall be deposited in an interest-bearing account with a chartered bank in Canada to which the Bank Act applies or a trust company in Canada to which the Trust and Loan Companies Act applies.
Disclosure of Beneficial Ownership
85#
Section 86 applies to a constrained share corporation that has provisions in its articles imposing a constraint referred to in paragraph (a) or (b) of the definition constraint in section 73.
86#
(1)Subject to section 103 of the Act, the directors of a constrained share corporation may make, amend or repeal any by-laws required to administer the constrained share provisions set out in the articles of the corporation, including by-laws
(a)to require any person in whose name shares of the corporation are registered to provide a statutory declaration under the Canada Evidence Act concerning
(i)whether the shareholder is the beneficial owner of the shares of the corporation or holds them for a beneficial owner,
(ii)whether the shareholder is an associate of any other shareholder,
(iii)whether the shareholder or beneficial owner is a Canadian, and
(iv)any further relevant facts;
(b)to require any person seeking to have a transfer of a voting share registered in their name or to have a voting share issued to them to provide a statutory declaration as described in paragraph (a); and
(c)to determine the circumstances in which any declarations are required, their form and the times when they are to be provided.
(2)If a person is required to provide a declaration under a by-law made under subsection (1), the directors may refuse to register a transfer of a voting share in their name or to issue a voting share to them until that person has provided the declaration.
(3)In administering the constrained share provisions set out in the articles of a constrained share corporation, the directors of the corporation may rely on
(a)a statement made in a declaration referred to in subsection (1) or (2); and
(b)the knowledge of a director, officer, employee, agent or mandatary of the corporation.
(4)If the directors are required to determine the total number of voting shares of a constrained share corporation held by or on behalf of persons other than Canadians, the directors may rely on the sum of the voting shares held by every shareholder whose latest address as shown in the securities register is
(a)outside Canada; and
(b)in Canada but who, to the knowledge of a director, officer, employee, agent or mandatary of the corporation, is not a Canadian.
(5)For the purpose of subsection (4), the directors may rely on the securities register of the constrained share corporation as of any date after the day on which the corporation became a constrained share corporation, but that date shall not be more than four months before the day on which the determination is made.
note
References and Definitions for the Purpose of Certain Provisions of the Act
87#
(1)For the purpose of paragraph 174(1)(b) of the Act,
(a)the following laws are prescribed:
(i)the Canadian Aviation Regulations made under the Aeronautics Act,
(ii)the Canada Transportation Act and any regulations made under it,
(iii)the Canada Oil and Gas Land Regulations and the Canada Oil and Gas Drilling and Production Regulations,
(iv)the Broadcasting Act,
(v)the Northern Mineral Exploration Assistance Regulations made under Appropriation Act No. 9, 1966,
(vi)section 19 of the Income Tax Act,
(vii)the Securities Act (Ontario), R.S.O. 1990, c. S.5, and any regulations made under it, as amended from time to time,
(viii)the Securities Act (Quebec), CQRL c. V-1.1, and any regulations made under it, as amended from time to time, and
(b)financial intermediary means a bank, trust company, loan company, insurance company, investment company and body corporate that carries on business as a securities broker, a dealer or an underwriter.
(2)For the purposes of subsection 32(1) and paragraphs 46(1)(a), 49(10)(a) and 174(1)(c) of the Act, the following laws are prescribed:
(a)the Canada Petroleum Resources Act and any regulations made under it; and
(b)the Canada Transportation Act and any regulations made under it.
(3)For the purpose of paragraphs 46(1)(b), 49(10)(b) and 174(1)(d) of the Act, the following laws are prescribed:
(a)the Insurance Companies Act and any regulations made under it; and
(b)the Trust and Loan Companies Act and any regulations made under it.
Part 10 · Rules of Procedure for Applications for Exemptions
Application
Time of Filing Applications
89#
(1)An application for an exemption under
(a)subsection 2(6) of the Act may be made at any time;
(b)subsection 10(2) or 187(11) of the Act shall be made before the date of issue of the certificate of continuance referred to in subsection 187(4) of the Act;
(c)subsection 82(3) of the Act shall be made at least 30 days before the corporation is required to comply with Part VIII of the Act;
(d)subsection 151(1) of the Act shall be made before the date of the notice referred to in subsection 149(1) of the Act;
(e)section 156 of the Act shall be made at least 60 days before the documents in respect of which the exemption is requested are to be sent to the Director; and
(f)subsection 171(2) of the Act may be made at any time.
(2)Despite subsection (1), the Director shall extend the time for making an application for an exemption if the applicant establishes that no prejudice will result from the extension.
Notice by Director of Decision
General
91#
The Director may request that an applicant for an exemption provide the Director with further information or that any other person provide the Director with information in writing that is relevant to the application.
92#
The Director shall give the applicant for an exemption a copy of any information received from any other person under section 91 and shall allow the applicant a reasonable opportunity to respond in writing.
Part 11 · Value of Total Financial Interest
Part 12 · Cancellation of Articles and Certificates
96#
(1)For the purpose of subsection 265.1(1) of the Act, the prescribed circumstances are that
(a)there is an obvious error in the articles or in the related certificate;
(b)there is an error in the articles or in the related certificate that was made by the Director;
(c)the cancellation of the articles and related certificate is ordered by a court; or
(d)the Director lacked the authority to issue the articles and related certificate.
(2)For the purpose of subsection 265.1(3) of the Act, the prescribed circumstances are that there is no dispute among the directors or shareholders as to the circumstances of the request for cancellation and
(a)the corporation has not used the articles and related certificate; or
(b)if it has used them, anyone dealing with the corporation on the basis of the articles and related certificate has consented to the cancellation.
Part 13 · Prescribed Fees
97#
(1)The fee payable in respect of a service set out in items 1 to 3, column 1, of Schedule 5 is the applicable fee set out in column 2.
(2)There is no fee payable in respect of the following services:
(a)the receipt and examination by the Director of articles of amendment sent under section 177 of the Act, if the only purpose of the amendment is to do one or more of the following:
(i)add an English or French version to the corporation’s name,
(ii)change the corporation’s name as directed by the Director under subsection 12(2), (4) or (4.1) of the Act, or
(iii)change the province in which the registered office is situated or the number of directors, if the articles are sent using the Director’s online service;
(b)the receipt and examination by the Director of documents sent under subsection 265(1) of the Act or a request for correction referred to in subsection 265(3) of the Act, if the correction relates solely to an error made by the Director;
(c)the receipt and examination by the Director of a request for a cancellation referred to in subsection 265.1(1) of the Act, in the circumstance referred to in paragraph 96(1)(b) of these Regulations; or
(d)the provision by the Director of
(i)an uncertified copy or uncertified extract under subsection 266(2) of the Act, if it is requested by a department or agency of the government of Canada or of the government of a province, by a municipality in Canada or by a police or law enforcement agency in Canada, or
(ii)an uncertified copy or uncertified extract of a profile of a corporation generated by the Director.
(2.1)In addition to the applicable fees set out in item 1 of Schedule 5, the fee set out in item 4 of Schedule 5 is to be paid for
(a)the expedited examination of articles of revival sent under subsection 209(2) of the Act; or
(b)the expedited examination of any of the following documents, if sent using the Director’s online service:
(i)articles of incorporation sent under section 7 of the Act,
(ii)articles of amendment sent under subsection 27(4) or 177(1) of the Act,
(iii)articles of amalgamation sent under subsection 185(1) of the Act,
(iv)articles of continuance sent under subsection 187(3) of the Act, or
(v)a request for a document evidencing the satisfaction of the Director for the purpose of subsection 188(1) of the Act.
(3)For the purpose of subsection 49(2) of the Act, the prescribed maximum fee for the issuance of a security certificate is $3.
Coming into Force
Schedule 1 · (Subsection 2(1))
Item | Column 1 | Column 2Jurisdiction | Legislation1 | Ontario | the definition reporting issuer in subsection 1(1) of the Securities Act, R.S.O. 1990, c. S.5, as amended from time to time2 | Quebec | the definition reporting issuer in sections 5 and 68 of the Securities Act, CQLR, c. V-1.1, as amended from time to time3 | Nova Scotia | the definition reporting issuer in paragraph 2(1)(ao) of the Securities Act, R.S.N.S. 1989, c. 418, as amended from time to time3.1 | New Brunswick | the definition reporting issuer in subsection 1(1) of the Securities Act, S.N.B. 2004, c. S-5.5, as amended from time to time4 | Manitoba | the definition reporting issuer in subsection 1(1) of The Securities Act, C.C.S.M. c. S50, as amended from time to time5 | British Columbia | the definition reporting issuer in subsection 1(1) of the Securities Act, R.S.B.C. 1996, c. 418, as amended from time to time5.1 | Prince Edward Island | the definition reporting issuer in paragraph 1(1)(zz) of the Securities Act, R.S.P.E.I. 1988, c. S-3.1, as amended from time to time6 | Saskatchewan | the definition reporting issuer in paragraph 2(1)(qq) of The Securities Act, 1988, S.S. 1988-89, c. S-42.2, as amended from time to time7 | Alberta | the definition reporting issuer in paragraph 1(ccc) of the Securities Act, R.S.A. 2000, c. S-4, as amended from time to time8 | Newfoundland and Labrador | the definition reporting issuer in paragraph 2(1)(oo) of the Securities Act, R.S.N.L. 1990, c. S-13, as amended from time to time9 | Yukon | the definition reporting issuer in subsection 1(1) of the Securities Act, SY 2007, c. 16, as amended from time to time10 | Northwest Territories | the definition reporting issuer in subsection 1(1) of the Securities Act, S.N.W.T. 2008, c. 10, as amended from time to time11 | Nunavut | the definition reporting issuer in subsection 1(1) of the Securities Act, S.Nu. 2008, c. 12, as amended from time to time
Schedule 2 · (Section 41)
Item | Column 1 | Column 2Jurisdiction | Legislation1 | Ontario | the definition take-over bid in subsection 89(1) of the Securities Act, R.S.O. 1990, c. S.5, as amended from time to time2 | Quebec | the definition take-over bid in section 110 of the Securities Act, CQRL c. V-1.1, as amended from time to time3 | Nova Scotia | the definition take-over bid in paragraph 95(c) of the Securities Act, R.S.N.S. 1989, c. 418, as amended from time to time3.1 | New Brunswick | the definition take-over bid in section 106 of the Securities Act, S.N.B. 2004, c. S-5.5, as amended from time to time4 | Manitoba | the definition take-over bid in section 80 of The Securities Act, C.C.S.M. c. S50, as amended from time to time5 | British Columbia | the definition take-over bid in subsection 92(1) of the Securities Act, R.S.B.C. 1996, c. 418, as amended from time to time6 | Saskatchewan | the definition take-over bid in paragraph 98(c) of The Securities Act, 1988, S.S. 1988-89, c. S-42.2, as amended from time to time7 | Alberta | the definition take-over bid in paragraph 158(c) of the Securities Act, R.S.A. 2000, c. S-4, as amended from time to time8 | Newfoundland and Labrador | the definition take-over bid in paragraph 90(c) of the Securities Act, R.S.N.L. 1990, c. S-13, as amended from time to time9 | Yukon | the definition take-over bid in section 196 of the Business Corporations Act, R.S.Y. 2002, c. 20, as amended from time to time10 | Northwest Territories | the definition take-over bid in section 196 of the Business Corporations Act, S.N.W.T. 1996, c. 19, as amended from time to time11 | Nunavut | the definition take-over bid in section 196 of the Business Corporations Act (Nunavut) S.N.W.T. 1996, c. 19, as amended from time to time
Schedule 3
Schedule 4
Schedule 5 · (Subsections 97(1) and (2.1) and section 98)
Item | Column 1 | Column 2Service under the Act | Fee ($)1 | Receipt and examination by the Director of | (a)an application made under subsection 2(6), a request for an exemption referred to in subsection 10(2) or 82(3) or an application made under subsection 151(1), section 156 or subsection 171(2) or 187(11) | 250(b)articles of incorporation sent under section 7 | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(c)articles of amendment sent under subsection 27(4) or 177(1) or articles of reorganization sent under subsection 191(4) | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(d)restated articles of incorporation sent under subsection 180(2) | 100(e)articles of amalgamation sent under subsection 185(1) | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(f)articles of continuance sent under subsection 187(3) | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(g)a request for a document evidencing the satisfaction of the Director for the purpose of subsection 188(1) | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(h)articles of arrangement sent under subsection 192(6) | 500(i)articles of revival sent under subsection 209(2) | (i)if sent using the Director’s online service | 200(ii)if sent using any other means | 250(j)a statement of revocation of intent to dissolve sent under subsection 211(10) | (i)if sent using the Director’s online service | 50(ii)if sent using any other means | 100(k)an annual return sent under section 263 | (i)if sent using the Director’s online service | 12(ii)if sent using any other means | 40(l)a request for a certificate referred to in subsection 263.1(1) | (i)if sent using the Director’s online service | 10(ii)if sent using any other means | 20(m)documents sent under subsection 265(1) or a request referred to in subsection 265(3) | 250(n)a request for a cancellation referred to in subsection 265.1(1) or a request referred to in subsection 265.1(3) | 2502 | Provision by the Director of an uncertified copy or uncertified extract under subsection 266(2), if requested using any means other than the Director’s online service, per copy or extract | 53 | Provision by the Director of a certified copy or certified extract under subsection 266(2) | (a)if requested using the Director’s online service, per copy or extract | 10(b)if requested using any other means, per copy or extract | 404 | Expedited examination by the Director of a document referred to in subsection 97(2.1) of these Regulations | 100
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.