Français   Site Map OFF
 

This is an unofficial version.
If you need an official copy, contact Statutory Publications.

S.M. 2006, c. 10

Bill 16, 4th Session, 38th Legislature

The Corporations Amendment Act

(Assented to June 13, 2006)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C225 amended

1           The Corporations Act is amended by this Act.

2(1)        The part of subsection 6(1) before clause (a) is amended by striking out "follow the prescribed form" and substituting "be in the form the Director requires".

2(2)        Subsection 6(5) is amended by striking out "prescribed form" and substituting "form the Director requires".

3           Section 18 is amended

(a) by striking out "or" at the end of the English version of clauses (a) to (d);

(b) in clause (f), by striking out "the financial assistance referred to in section 42 or"; and

(c) in the part after clause (f) of the English version, by adding "or her" after "his".

4           Subsection 19(4) is amended by striking out "prescribed form" and substituting "the form the Director requires".

5(1)        Subsections 20(1) to (5) are replaced with the following:

Corporate records

20(1)       A corporation shall prepare, and maintain at its registered office or at another place in Manitoba designated by the directors, records containing

(a) the articles and the by-laws, and the amendments to them, and a copy of any unanimous shareholder agreement;

(b) the minutes of meetings and resolutions of shareholders;

(c) a register of directors setting out the name, address and other occupation of each person who is or has been a director of the corporation, and the dates on which he or she became and, if applicable, ceased to be a director; and

(d) a securities register that complies with section 46.

Other records

20(2)       A corporation shall also prepare, and maintain at its registered office or at another place in Manitoba designated by the directors, adequate accounting records and records containing minutes of meetings and resolutions of the directors and of any committee of directors.

Directors' access to other records

20(3)       A director may, at any reasonable time, inspect a record described in subsection (2).

Records in Manitoba

20(4)       If the accounting records of a corporation are kept outside Manitoba, the corporation shall keep accounting records, adequate to enable the directors to ascertain the financial position of the corporation with reasonable accuracy on a quarterly basis, at the registered office or at another place in Manitoba designated by the directors.

Exception

20(5)       Despite subsections (1), (2) and (4), a corporation may keep all or any of the records described in subsections (1) and (2) at a place outside Manitoba if

(a) the records are available to be inspected, by means of a computer terminal or other technology, during regular office hours at the corporation's registered office or another place in Manitoba designated by the directors; and

(b) the corporation provides the technical assistance to facilitate such inspections.

5(2)        Subsections 20(6) and (8) are repealed.

6           Subsection 26(11) is amended by striking out "sections 36, 40 and 42" and substituting "sections 36 and 40".

7(1)        Subsection 27(1) is replaced with the following:

Shares in series

27(1)       Subject to the limitations set out in the articles, the articles of a corporation may authorize the issue of any class of shares in one or more series and may do either or both of the following:

(a) fix the number of shares in each series and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series;

(b) authorize the directors to fix the number of shares in each series and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series.

7(2)        Subsection 27(4) is replaced with the following:

Amendment of articles when series designated

27(4)       If the directors exercise their authority under clause (1)(b), they shall, before the corporation issues shares of the series, send articles of amendment to the Director to designate a series of shares.  The articles of amendment must be in the form the Director requires.

8           Section 42 is repealed.

9           Subsection 46(3) is replaced with the following:

Where registers are to be kept

46(3)       Subject to subsection 20(5), a corporation shall maintain its central securities register at its registered office or at another place in Manitoba designated by the directors.  A corporation may maintain a branch securities register at any place designated by the directors, whether in Manitoba or not.

10          Subsection 97(1) is replaced with the following:

Duty to manage or supervise management

97(1)       Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation.

11(1)       Subsection 100(3) is replaced with the following:

Residency

100(3)      Subject to subsection (3.1), at least 25% of a corporation's directors must be residents of Canada.

Residency when directors are three or fewer

100(3.1)    If a corporation's board is comprised of three or fewer directors, one of them must be a resident of Canada.

11(2)       Subsection 100(4) is repealed.

12          Subsection 108(1) is amended by striking out "in prescribed form" and substituting ", in the form the Director requires,".

13(1)       Subsections 109(3) and (4) are replaced with the following:

Residency requirements re quorum

109(3)      Directors shall not transact business at a meeting of directors unless at least 25% of the directors present are residents of Canada or, if the corporation has three or fewer directors, at least one of the directors present is a resident of Canada.

Transacting business without resident quorum

109(4)      Despite subsection (3), directors may transact business at a meeting of directors when the number of directors who are required to be residents of Canada is not present if

(a) a director who is a resident of Canada and is unable to be present approves in writing, or by telephonic, electronic or other communication facility, the business transacted at the meeting; and

(b) the number of directors who are required to be residents of Canada would have been present had that director been present at the meeting.

13(2)       Subsection 109(9) is replaced with the following:

Participation in meeting by electronic means

109(9)      Unless the by-laws otherwise provide, a director may participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting if

(a) all the directors of the corporation consent; and

(b) the meeting is held in accordance with the regulations, if any.

Deemed presence of participant

109(10)     For the purposes of this Act, a director who participates in a meeting in the manner provided in subsection (9) is deemed to be present at the meeting.

14(1)       Subsection 113(2) is amended

(a) by repealing clause (d); and

(b) in the English version, by striking out "or" at the end of clauses (a), (b), (c) and (e).

14(2)       Subsections 113(4) and (5) are amended by striking out "42,".

15          The following is added after section 114:

Deemed directors

114.1(1)    If all of a corporation's directors have resigned or have been removed without replacement, a person who manages or supervises the management of the business and affairs of the corporation is deemed to be a director for the purposes of this Act.

Exceptions

114.1(2)    Subsection (1) does not apply to

(a) an officer who manages the business or affairs of the corporation under the direction or control of a shareholder or other person;

(b) a lawyer, accountant or other professional who participates in the management of the corporation solely for the purpose of providing professional services; or

(c) a trustee in bankruptcy, receiver, receiver-manager or secured creditor who participates in the management of the corporation or exercises control over its property solely for the purpose of realizing security, or, in the case of a trustee in bankruptcy, administering a bankrupt's estate.

16          Subsection 118(4) is replaced with the following:

Defence of reasonable diligence

118(4)      A director is not liable under section 113 or 114, and has complied with his or her duties under subsection 117(2), if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

(a) financial statements of the corporation represented to the director, by an officer of the corporation or in a written report of the auditor of the corporation, to reflect fairly the financial condition of the corporation; or

(b) a report of a person whose profession lends credibility to a statement made by the professional person.

Defence of good faith

118(5)      A director has complied with his or her duties under subsection 117(1) if the director relied in good faith on financial statements or a report described in clause (4)(a) or (b).

17          Subsection 121(1) is amended by striking out "prescribed form and" and substituting "the form the Director requires, and".

18           Section 123 is amended by striking out "prescribed form" and substituting "form the minister requires".

19          The following is added after subsection 126(3):

Participation in meeting by electronic means

126(4)      Unless the by-laws otherwise provide, a person entitled to attend a shareholders' meeting may participate in the meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if

(a) the corporation makes available such a communication facility; and

(b) the meeting is held in accordance with the regulations, if any.

Deemed presence of participant

126(5)      For the purposes of this Act, a person who participates in a shareholders' meeting in the manner provided in subsection (4) is deemed to be present at the meeting.

20          The following is added after section 126:

Meetings held by electronic means

126.1       If the by-laws so provide, directors or shareholders of a corporation who call a meeting of shareholders in accordance with any provision of this Act may determine that the meeting is to be held entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting.  The meeting shall be held in accordance with the regulations, if any.

21          The following is added after subsection 135(2):

Electronic voting

135(3)      Despite subsection (1), unless the by-laws otherwise provide, any vote referred to in subsection (1) may be held entirely by means of a telephonic, electronic or other communication facility, if

(a) the corporation makes available such a communication facility; and

(b) the vote is held in accordance with the regulations, if any.

Voting while participating electronically

135(4)      Unless the by-laws otherwise provide, any person participating in a meeting of shareholders under subsection 126(4) or section 126.1 and entitled to vote at that meeting may vote by means of the telephonic, electronic or other communication facility that the corporation has made available for that purpose.  The vote shall be held in accordance with the regulations, if any.

22          Subsection 143(1) is amended by striking out "prescribed form" and substituting "the form required under The Securities Act".

23          Subsection 144(1) is amended

(a) in clause (a), by striking out "prescribed form" and substituting "the form required under The Securities Act"; and

(b) in clause (b), by striking out "in prescribed form" and substituting ", in the form required under The Securities Act,".

24          Subsection 171(1) is amended by striking out "articles of amendment in prescribed form shall be sent to the Director" and substituting ", the corporation shall send the Director articles of amendment in the form the Director requires".

25          Subsection 174(2) is replaced with the following:

Delivery of articles

174(2)      After the directors restate the corporation's articles of incorporation, the corporation shall send the Director restated articles of incorporation in the form the Director requires.

26          Subsection 179(1) is amended by striking out "articles of amalgamation in prescribed form and in compliance with the requirements of section 6 shall be sent to the Director" and substituting "the amalgamating corporations shall send the Director articles of amalgamation that comply with section 6 and are in the form the Director requires".

27          Subsection 181(4) is replaced with the following:

Articles of continuance

181(4)      A body corporate that applies for continuance under subsection (1) or (2) shall send the Director articles of continuance that comply with section 6 and are in the form the Director requires.

28          Subsection 182(9) is amended by striking out "prescribed form" and substituting "the form the Director requires".

29          Clause 183(1)(c) is amended by striking out "subject to section 42,".

30(1)       Subsection 185(4) is amended by striking out "articles of reorganization in prescribed form shall be sent to the Director" and substituting "the corporation shall send the Director articles of reorganization in the form the Director requires".

30(2)       Subsection 185(12) is amended by striking out "articles of arrangement in prescribed form shall be sent to the Director" and substituting "the corporation shall send the Director articles of arrangement, in the form the Director requires,".

31(1)       The part of subsection 186(1) after clause (b) is amended by striking out "form prescribed" and substituting "form the Director requires".

31(2)       Subsection 186(4) is replaced with the following:

Consent to act as attorney

186(4)      A person appointed by a body corporate as its attorney shall sign a consent to act as attorney in the form the Director requires.

32          Subsection 190(1) is amended by striking out "prescribed form" and substituting "the form the Director requires".

33          Section 200 is amended by striking out "prescribed form" and substituting "the form the Director requires".

34          Subsection 202(1) is amended by striking out "prescribed form" and substituting "the required form".

35          Subsection 203(4) is replaced with the following:

Articles of dissolution

203(4)      A corporation shall send the Director articles of dissolution, in the form the Director requires, if

(a) the corporation has not issued any shares and all of its directors have resolved to dissolve it under subsection (1);

(b) the corporation has no property and no liabilities, and the necessary resolutions to dissolve it have been passed as required by subsection (2); or

(c) the necessary resolutions to dissolve the corporation have been passed, its property has been distributed and its liabilities have been discharged, as required by subsection (3).

36(1)       Subsection 204(4) is replaced with the following:

Statement of intent to dissolve

204(4)      A corporation that wishes to obtain a certificate of intent to dissolve shall send the Director a statement of intent to dissolve in the form the Director requires.

36(2)       Subsection 204(10) is amended by striking out "prescribed form" and substituting "the form the Director requires".

36(3)       Subsection 204(13) is amended by adding "in the form the Director requires" at the end.

36(4)       Subsection 204(14) is replaced with the following:

Articles of dissolution

204(14)     After complying with subsection (13), the corporation shall send the Director the articles of dissolution if it wishes to obtain a certificate of dissolution under this section.

37          Subsections 205(1) and (2) are replaced with the following:

Dissolution by Director

205(1)      Subject to subsections (2) and (5), the Director may dissolve a corporation by issuing a certificate of dissolution under this section, or may apply to the court for an order dissolving the corporation, if

(a) the corporation is in default for a period of two consecutive years in sending the Director any notice or document required by this Act;

(b) the Director has reasonable cause to believe that the corporation is not carrying on business or is not in operation;

(c) the corporation is in default in sending the Director any fee required by this Act;

(d) the corporation does not have any directors or subsection 114.1(1) applies in respect of the corporation;

(e) the corporation has fewer directors who are residents of Canada than this Act requires; or

(f) without limiting the generality of clause (d), the corporation is a corporation without share capital and it has fewer than three directors.

Notice and publication

205(2)      The Director shall not dissolve a corporation under this section

(a) until he or she has given the corporation notice of the decision to dissolve it; and

(b) when the dissolution is for a reason set out in clause (1)(a), (b) or (c), until he or she has published, in the manner set out in the regulations, a notice of the decision to dissolve the corporation.

38          Subsection 206(4) is amended

(a) in clause (a), by striking out "prescribed form" and substituting "the approved form"; and

(b) in clause (b), by striking out "prescribed" and substituting "approved".

39          Subsection 215(2) is replaced with the following:

Defence of due diligence

215(2)      A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including, reliance in good faith on

(a) financial statements of the corporation represented to the liquidator, by an officer of the corporation or in a written report of the auditor of the corporation, to reflect fairly the financial condition of the corporation; or

(b) a report of a person whose profession lends credibility to a statement made by the professional person.

40          The following is added after section 251:

Execution of documents in counterparts

251.1(1)    A document that is to be filed with the Director and is required or permitted to be executed or signed by more than one person may be

(a) executed or signed in several documents of identical form, each of which is executed or signed by one or more of the persons; and

(b) filed with the Director if the requirements of subsection (2) are met.

Counterparts deemed to be one document

251.1(2)    The documents are deemed to be one document for the purpose for which they are filed, if

(a) they are duly executed or signed by all the required or permitted persons;

(b) a lawyer who is entitled to practise law in Manitoba certifies in writing, in the form the Director requires, that he or she has reviewed the executed or signed documents and that they are identical, except with respect to the details of execution or signing; and

(c) the certificate is filed with the documents.

41          Subsection 254(1) is amended

(a) in clause (c), by adding ", including electronic documents," after "other documents";

(b) by adding the following after clause (c.1):

(c.2) specifying the returns, notices and other documents that may be transmitted to or issued by the Director electronically;

(c.3) respecting the persons or classes of persons who may transmit returns, notices and other documents to the Director electronically;

(c) by adding the following after clause (d):

(d.1) respecting participation in directors' and shareholders' meetings by means of telephonic, electronic or other communication facilities;

(d.2) respecting shareholders' meetings that are held entirely by means of telephonic, electronic or other communication facilities;

(d.3) respecting voting at shareholders' meetings when shareholders or other persons entitled to vote are participating by means of telephonic, electronic or other communication facilities;

42(1)       Clause 255(2)(b) is amended

(a) in the part before subclause (i), by striking out "prescribed form" and substituting "the form the Director requires"; and

(b) in subclause (i), by striking out "prescribed" and substituting "approved".

42(2)       Subsection 255(7) is replaced with the following:

Use of French in articles and other documents

255(7)      A person may send articles or a statement relating to a corporation to the Director in the French language.  When that is the case, the approved certificate on the duplicate originals shall be in the French language.

43           The following is added after section 255:

Form and content of documents

255.1       The Director may

(a) approve the form and content of any document that this Act or the regulations require a person to file with or send to the Director;

(b) approve the form and content of any document that this Act or the regulations require the Director to issue, publish or provide to a person;

(c) require that additional information or documents must be provided when documents are filed with or sent to the Director; and

(d) direct how many originals or copies of a document must be filed, sent, provided or issued.

44          Section 258 is replaced with the following:

Meaning of "document"

258(1)      In this section and section 258.1, "document" means articles, or an application, certificate, notice, order, statement or other document in relation to a body corporate, that is

(a) filed with the Director; or

(b) issued by the Director.

Corrections by the Director

258(2)      The Director may correct an error in a document if the error was made by the Director or a person acting under the Director's control.

Director may request body corporate to act

258(3)      If a document contains an error, the directors or shareholders of a body corporate shall, at the Director's request, do the following so that the Director may correct the document:

(a) pass the resolutions and send the Director the documents required to comply with this Act;

(b) take any other steps that the Director may reasonably require.

Application to court

258(4)      If a document filed with the Director in relation to a body corporate contains an error other than one referred to in subsection (2), the body corporate or an interested person may apply to the court for

(a) an order that the document be corrected; and

(b) an order determining the rights of the body corporate's shareholders or creditors.

Court must consider prejudice to shareholders and creditors

258(5)       The court must not order the error to be corrected unless it considers whether any of the body corporate's shareholders and creditors are prejudiced by the correction.

Notice to the Director

258(6)      An applicant under subsection (4) shall give the Director notice of the application.  The Director is entitled to appear before the Court and to be heard in person or by counsel.

Surrender of original document

258(7)      For the purpose of correcting a document under this section, the Director may at any time demand the return of the original document.  The person who possesses the original document shall, upon receiving the Director's demand, surrender it to the Director without delay.

Director's action after correction

258(8)      After a document is corrected under this section, the Director may issue or file the corrected document.

Date of corrected document

258(9)      A document corrected under this section shall bear the date of the document it replaces

(a) unless the correction is made with respect to the date of the document, in which case the document shall bear the corrected date; or

(b) in the case of a document corrected by court order, unless the court decides otherwise.

Notice in certain circumstances

258(10)     If a corrected certificate or order materially amends the terms of the original certificate or order, the Director shall publish a notice of the correction in the manner set out in the regulations.

Cancellation of a document by Director

258.1(1)    The Director may cancel a document filed with or issued by the Director in relation to a body corporate if

(a) the document contains an error attributable to the Director or a person acting under the Director's control;

(b) the document was filed due to an error made by the Director or a person acting under the Director's control; or

(c) the document was issued due to the Director's error or the error of a person acting under the Director's control.

Application to court

258.1(2)    If a document in relation to a body corporate contains or is filed due to an error other than an error described in subsection (1), the body corporate or an interested person may apply to the court for

(a) an order that the document be cancelled; and

(b) an order determining the rights of the body corporate's shareholders or creditors.

Court must consider prejudice to shareholders and creditors

258.1(3)    The court must not order the error to be corrected unless it considers whether any of the body corporate's shareholders and creditors are prejudiced by the correction.

Notice to the Director

258.1(4)    An applicant under subsection (2) shall give the Director notice of the application.  The Director is entitled to appear before the Court and to be heard in person or by counsel.

Surrender of original document

258.1(5)    For the purpose of cancelling a document under this section, the Director may at any time demand the return of the original document.  The person who possesses the original document shall, upon receiving the Director's demand, surrender it to the Director without delay.

45          The part of subsection 262(3) before clause (a) is amended by striking out "prescribed form" and substituting "form the Director requires".

46          The part of section 268 before clause (a) is amended by striking out "prescribed form" and substituting "form the Director requires".

Coming into force

47(1)       Subject to subsection (2), this Act comes into force on the day it receives royal assent.

Coming into force — certain provisions on proclamation.

47(2)       The following provisions come into force on a day to be fixed by proclamation: sections 2, 4 and 12, subsection 13(2), sections 19 to 28, sections 30 to 36, section 38, sections 40 to 43 and sections 45 and 46.

 

 


Accessibility Disclaimer Copyright Privacy Contact Government