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. 45TRUST AND LOAN COMPANIES ACT
368. (1) The definitions “form of proxy” and “proxy” in section 2 of the Trust and Loan Companies Act are replaced by the following:
“form of proxy”
« formulaire de procuration »
“form of proxy” means a form of proxy as defined in the regulations;
“proxy”
« procuration »
“proxy” means a proxy as defined in the regulations;
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
“going-private transaction”
« transaction de fermeture »
“going-private transaction” means a going-private transaction as defined in the regulations;
“minor”
« mineur »
“minor” has the same meaning as in the applicable provincial law and in the absence of any such law has the same meaning as the word “child” in the United Nations Convention on the Rights of the Child adopted in the United Nations General Assembly on November 20, 1989;
“squeeze-out transaction”
« transaction d’éviction »
“squeeze-out transaction” means a transaction by a company that is not a distributing company that requires an amendment to a by-law referred to in subsection 222(1) and that would directly or indirectly result in the interest of a holder of shares of a class of shares being terminated without their consent and without substituting an interest of equivalent value in shares issued by the company that have rights and privileges equal to or greater than those of the shares of the affected class;
(3) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« société n’ayant pas fait appel au public »
Marginal note:French version only
société n’ayant pas fait appel au public S’entend d’une société autre qu’une société ayant fait appel au public.
369. The Act is amended by adding the following after section 2.2:
Marginal note:Regulations — distributing company
2.3 (1) The Governor in Council may make regulations respecting the determination of what constitutes a distributing company for the purposes of this Act.
Marginal note:Exemption — company
(2) On the application of a company, the Superintendent may determine that it is not or was not a distributing company if the Superintendent is satisfied that the determination would not prejudice any of its security holders.
Marginal note:Exemption — class of companies
(3) The Superintendent may determine that members of a class of companies are not or were not distributing companies if the Superintendent is satisfied that the determination would not prejudice any security holder of a member of the class.
Marginal note:1997, c. 15, s. 340
370. Section 11 of the Act is repealed.
371. Section 19 of the Act is replaced by the following:
Marginal note:Authority of directors and officers
19. (1) No company and no guarantor of an obligation of a company may assert against a person dealing with the company or against a person who has acquired rights from the company that
(a) the company’s incorporating instrument or any by-laws of the company have not been complied with;
(b) the persons named as directors of the company in the most recent return sent to the Superintendent under section 499 are not the directors of the company;
(c) the place named in the incorporating instrument or by-laws of the company is not the place where the head office of the company is situated;
(d) a person held out by the company as a director, officer or representative of the company has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the company or usual for a director, officer or representative; or
(e) a document issued by any director, officer or representative of the company with actual or usual authority to issue the document is not valid or not genuine.
Marginal note:Exception — knowledge
(2) Subsection (1) does not apply in respect of a person who has or ought to have knowledge of a situation described in that subsection by virtue of their relationship to the company.
372. Paragraph 27(1)(b) of the Act is replaced by the following:
(b) the province in which the head office of the company is to be situated; and
373. (1) Subsection 65(1) of the Act is replaced by the following:
Marginal note:Shares issued in series
65. (1) The by-laws of a company may, subject to any limitations set out in them, authorize the issue of any class of shares in one or more series and may
(a) fix the maximum number of shares in each series and determine the designation, rights, privileges, restrictions and conditions attaching to them; and
(b) authorize the directors to do anything referred to in paragraph (a).
(2) Subsection 65(5) of the Act is replaced by the following:
Marginal note:Material to Superintendent
(5) If the directors exercise their authority under paragraph (1)(b), the directors shall, before the issue of shares of the series, send to the Superintendent a copy of the by-law authorizing the directors to fix the rights, privileges, restrictions and conditions of those shares and shall provide the Superintendent with particulars of the proposed series of shares.
Marginal note:1997, c. 15, s. 345
374. Subsection 69(2.1) of the Act is replaced by the following:
Marginal note:Exception
(2.1) Despite subsection (2), a company may, subject to subsection (2.2), record in the stated capital account maintained for the shares of a class or series any part of the consideration it receives in an exchange if it issues shares
(a) in exchange for
(i) property of a person who immediately before the exchange did not deal with the company at arm’s length within the meaning of that expression in the Income Tax Act,
(ii) shares of or another interest in a body corporate that immediately before the exchange or because of it did not deal with the company at arm’s length within the meaning of that expression in the Income Tax Act, or
(iii) property of a person who immediately before the exchange dealt with the company at arm’s length within the meaning of that expression in the Income Tax Act if the person, the company and all of the holders of shares in the class or series of shares so issued consent to the exchange;
(b) under an agreement referred to in subsection 229(1); or
(c) to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated company.
375. Subsection 75(1) of the French version of the Act is replaced by the following:
Marginal note:Exception — représentant personnel
75. (1) La société — ainsi que ses filiales si elle le leur permet — peut, en qualité de représentant personnel, mais à condition de ne pas en avoir la propriété effective, détenir soit des actions de la société ou d’une personne morale qui la contrôle, soit des titres de participation d’une entité non constituée en personne morale qui la contrôle.
376. The Act is amended by adding the following after section 75:
Marginal note:Exception — conditions before acquisition
75.1 (1) A company may permit its subsidiary to acquire shares of the company, shares of an entity that controls the company or any ownership interests of any unincorporated entity that controls the company if before the subsidiary acquires them the conditions prescribed for the purposes of this subsection are met.
Marginal note:Conditions after acquisition
(2) After a subsidiary has acquired shares or ownership interests in accordance with subsection (1), the conditions prescribed for the purposes of this subsection are to be met.
Marginal note:Non-compliance with conditions
(3) Despite section 15 and subsection 69(2), the issue and acquisition of the shares or ownership interests are subject to the prescribed requirements if
(a) the company permits the subsidiary to acquire the shares or ownership interests; and
(b) either
(i) a condition prescribed for the purposes of subsection (1) was not met, or
(ii) a condition prescribed for the purposes of subsection (2) was not met or ceased to be met.
377. Section 89 of the Act is replaced by the following:
Marginal note:Signatures
89. (1) A security certificate shall be signed by or bear the printed or otherwise mechanically reproduced signature of at least one of the following:
(a) a director or officer of the company;
(b) a registrar or transfer agent of the company or a branch transfer agent or a natural person on their behalf; or
(c) a trustee who certifies it in accordance with a trust indenture.
Marginal note:Continuation of validity of signature
(2) If a security certificate contains a person’s printed or mechanically reproduced signature, the company may issue the security certificate even if the person has ceased to be a director or officer of the company. The security certificate is as valid as if the person were a director or officer at the date of its issue.
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