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C.C.S.M. c. C223
The Cooperatives Act
| Table of Contents | Regulations |
| Sections: 1 - 91 | 92 - 217 | 218 - 321 | 322 - 404 |
PART 15
INVESTIGATIONS
322(1) The Registrar may, on the Registrar's own motion, or upon the application of 10% of the members of a cooperative each of whom has been a member of the cooperative for not less than 12 months immediately preceding the day the application is made, appoint an auditor to conduct a special audit of the books of the cooperative and to report thereon.
322(2) The expenses incidental to the special audit of the books of a cooperative shall be defrayed, as the Registrar may direct, by the members of the cooperative applying therefor, or by the cooperative or its directors or officers or former directors, members or officers, or by all or any combination of the foregoing, in such proportion as the Registrar may direct.
322(3) An auditor appointed under this section to conduct a special audit of the books of a cooperative may require the production of all or any of the books, accounts, securities and documents of the cooperative, and may require its directors, officers, members, agents and servants to furnish such evidence as the Registrar deems requisite in relation to its business.
323(1) Any interested person may apply, without notice or on any notice that the court may require, to the court for an order directing an investigation to be made of a cooperative and any of its affiliates.
323(2) The court may order an investigation to be made of a cooperative and any of its affiliates if, on an application under subsection (1), it appears to the court that the application is neither frivolous nor vexatious and that
(a) the cooperative is not organized, operating or carrying on business on a cooperative basis;
(b) the business or the affairs of the cooperative are not being carried on or conducted in accordance with
(i) the restrictions contained in its articles,
(ii) its by-laws,
(iii) a unanimous agreement, or
(iv) this Act,
(c) the business of the cooperative or any of its affiliates is or has been carried on with intent to defraud any person;
(d) the business or affairs of the cooperative or any of its affiliates are or have been carried on or conducted, or the powers of the directors are or have been exercised, in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, any of its members, shareholders or security holders;
(e) the cooperative or any of its affiliates was formed for a fraudulent or unlawful purpose or is to be dissolved for a fraudulent or unlawful purpose; or
(f) persons concerned with the formation, business or affairs of the cooperative or any of its affiliates have, in connection with the formation, business or affairs of the cooperative, acted fraudulently or dishonestly.
323(3) A person making an application under this section is not required to give security for costs.
324(1) In connection with an investigation of a cooperative pursuant to an order of the court made under this Part, the court may make any order it thinks fit, including an order:
(a) to investigate the cooperative or any subsidiary of the cooperative or any holding body corporate of the cooperative;
(b) appointing an inspector, who may be the Registrar, to carry out the investigation, fixing the inspector's remuneration, or replacing an inspector;
(c) determining the notice to be given to any interested person, or dispensing with notice to any person;
(d) authorizing the inspector to enter any premises in which the court is satisfied there might be relevant information and to examine any thing and make copies of any document found on the premises;
(e) requiring any person to produce documents to the inspector;
(f) authorizing the inspector to conduct a hearing, administer oaths, and examine any person on oath, and setting out rules for the conduct of hearings;
(g) requiring any person to attend a hearing conducted by the inspector and to give evidence on oath;
(h) giving directions to the inspector or any other interested person on any matter arising in the investigation;
(i) requiring the inspector to make an interim or final report to the court;
(j) determining whether a report of the inspector should be published and, if so, ordering its publication in whole or in part or that copies of it be sent to any person the court designates;
(k) requiring the inspector to discontinue an investigation;
(l) if the cooperative is incorporated with membership capital, requiring the cooperative to be continued under The Corporations Act, or if it is incorporated without membership capital, requiring it to be dissolved;
(m) determining any matter that relates to the relationship between a member and the cooperative; and
(n) requiring the cooperative to pay the costs of the investigation.
324(2) An inspector appointed to conduct an investigation of a cooperative under this Part shall send the Registrar a copy of every report made by the inspector under this Part.
325(1) An inspector appointed to conduct an investigation of a cooperative under this Part has the powers set out in the order appointing the inspector.
325(2) In addition to the powers set out in the order appointing an inspector to conduct an investigation of a cooperative under this Part, the inspector may provide information to, or exchange information and otherwise cooperate with, any public official in Canada or elsewhere who
(a) is authorized to exercise investigatory powers; and
(b) is investigating, in respect of the cooperative or any subsidiary of the cooperative or its holding body corporate, any allegation of improper conduct that is the same as or similar to the conduct described in subsection 323(2).
325(3) An inspector appointed to conduct an investigation of a cooperative under this Part shall, on the request of an interested person, produce a copy of any order made under subsection 324(1) under which the inspector was appointed or under which the inspector is acting.
326(1) Any interested person may apply to the court for an order that a hearing under this Part be heard in private and for directions on any matter arising in the investigation.
326(2) A person whose conduct is being investigated or who is being examined at a hearing conducted under this Part has the right to be represented by counsel.
327 No person is excused from attending and giving evidence and producing a document to an inspector appointed to conduct an investigation under this Part solely because the evidence or document tends to incriminate the person or subject the person to a proceeding or penalty, but no such evidence may be used or is receivable against the person in any later proceeding instituted under any Act, other than a prosecution for perjury in giving the evidence or a prosecution under section 132 or 136 of the Criminal Code (Canada) in respect of the evidence.
Absolute privilege: defamation
328 Any oral or written statement or report made in an investigation under this Part by any person including the inspector appointed to conduct the investigation has absolute privilege.
329(1) For the purposes of this section, "security" includes a membership share or an interest in a membership share.
Information respecting ownership and control
329(2) If the Registrar is satisfied that, for the purposes of Part 10 or section 367 or for the purposes of enforcing any regulation made under subsection 48(6), there is reason to inquire into the ownership or control of a security of a cooperative or any of its affiliates, the Registrar may require any person that the Registrar reasonably believes has or has had an interest in the security or acts or has acted on behalf of a person with such an interest to report to the Registrar or to any designated person,
(a) information that the person has or can reasonably be expected to obtain as to present and past interests in the security; and
(b) the names and addresses of the persons so interested and of any person who acts or has acted in relation to the security on behalf of the persons so interested.
329(3) For the purposes of subsection (2), a person is deemed to hold an interest in a security of a cooperative if
(a) in the case of a membership share of the cooperative, the person is or is entitled to be entered in the records of the cooperative as the owner of the membership share; and
(b) in the case of an investment share of the cooperative,
(i) the person has a right to vote or to acquire or dispose of the investment share or an interest in it,
(ii) the person's consent is necessary for the exercise of the rights or privileges of any other person interested in the investment share, or
(iii) any other person interested in the investment share can be required or is accustomed to exercise rights or privileges attached to it in accordance with the person's instructions.
329(4) The Registrar shall publish, in a publication generally available to the public, the particulars of information obtained under this section if the particulars
(a) are required by this Act or the regulations to be disclosed; and
(b) have not previously been so disclosed.
330 Nothing in this Part may be construed as affecting the privilege that exists in respect of lawyers and notaries and their clients.
331 The Registrar may make inquiries of any person relating to compliance with this Act.
PART 16
RECEIVERS AND RECEIVER MANAGERS
332(1) Subject to the rights of secured creditors, a receiver of any property of a cooperative may
(a) receive the income from the property and pay the liabilities connected with it; and
(b) realize the security interest of those on whose behalf the receiver is appointed.
332(2) Notwithstanding subsection (1) but subject to any order that the court may make under section 336, a receiver of property of a cooperative who is not appointed manager of the cooperative may not carry on the business of the cooperative.
333 Notwithstanding section 332, if a receiver of a cooperative is also appointed manager of the cooperative, the receiver may carry on any business of the cooperative to protect the security interest of those on whose behalf the receiver was appointed.
334 If a receiver or receiver-manager of a cooperative is appointed by the court or pursuant to an instrument, no director of the cooperative shall exercise directors' powers in respect of the cooperative that the receiver or receiver-manager is authorized to exercise until the receiver or receiver-manager is discharged.
If receiver appointed by court
335(1) A receiver or receiver-manager of a cooperative appointed by the court shall act in accordance with any directions of the court.
If receiver appointed pursuant to instrument
335(2) A receiver or receiver-manager of a cooperative appointed pursuant to an instrument shall act in accordance with the instrument and any direction that the court may make under section 336.
335(3) A receiver or receiver-manager of a cooperative shall
(a) act honestly and in good faith; and
(b) deal in a commercially reasonable manner with any property of the cooperative in the possession or control of the receiver or receiver-manager, as the case may be.
336 The court may, on the application of a receiver or receiver-manager of a cooperative appointed by the court or pursuant to an instrument, or any other interested person, make any order giving directions on any matter relating to the duties of the receiver or receiver-manager appointed by it or pursuant to an instrument that it considers appropriate, including an order
(a) appointing, replacing or discharging the receiver or receiver-manager and approving the accounts of the receiver or receiver-manager;
(b) determining the notice to be given to any person or dispensing with notice to any person;
(c) fixing the remuneration of the receiver or receiver-manager;
(d) requiring the receiver or receiver-manager, or a person by or on behalf of whom the receiver or receiver-manager was appointed, to make good any default in connection with the receiver's or receiver- manager's custody or management of the property and business of the cooperative, or relieving a receiver or receiver-manager, or a person by or on behalf of whom a receiver or receiver-manager was appointed, from any default on any terms that the court considers appropriate;
(e) confirming any act of the receiver or receiver-manager; and
(f) giving directions on any other matter relating to the duties of the receiver or receiver-manager.
337(1) A receiver or receiver-manager of a cooperative shall
(a) take the property of the cooperative into custody and control in accordance with the court order or instrument pursuant to which the receiver or receiver-manager is appointed;
(b) open and maintain a bank account as receiver or receiver-manager of the cooperative for the money of the cooperative coming under the control of the receiver or receiver-manager;
(c) keep detailed accounts of all transactions carried out as receiver or receiver-manager;
(d) keep accounts of the administration of the receiver or receiver-manager and cause them to be made available during usual business hours for inspection by the directors;
(e) prepare, at least once in every six month period after the day of appointment, financial statements of the administration, as far as is feasible, in the form required by section 257;
(f) on completion of the duties under the court order or instrument pursuant to which the receiver or receiver-manager was appointed, render a final account of the administration in the form that the receiver or receiver-manager has adopted for preparation of interim accounts under clause (e); and
(g) if section 33 would otherwise apply, file with the Registrar a copy of any financial statement mentioned in clause (e) and any final account mentioned in clause (f) not later than 15 days after it is prepared or rendered.
Liability of receiver for wages
337(2) Where, under the provisions of a security of a cooperative secured by a floating charge or by a charge that includes a floating charge on the property of the cooperative, a receiver or receiver-manager of the property is appointed or possession of any of the property is taken by or on behalf of a holder of the security, there shall be paid out of any assets secured by the floating charge but not subject to a fixed charge that comes into the hands of the receiver or receiver-manager or holder, in priority to any claim for payment under the security the unpaid wages for a period not exceeding three months of all clerks, labourers, servants, apprentices and other wage earners in the employ of the cooperative as at the day the receiver or receiver-manager is appointed or the holder takes possession, or so much of those wages as may be realized out of those assets.
337(3) A receiver or receiver-manager or holder making payment under subsection (2) is subrogated, to the extent of the amount of the payment, to the rights that the person receiving payment has under section 206 but subject to the person's prior right to enforce payment under that section of any balance of wages due to and not received by the person under subsection (2).
Rights of director who pays receiver
337(4) Where a receiver or receiver-manager or holder receives payment from a director of the body corporate because of subsection (3), the director is entitled to any preference that the person to whose rights the receiver or receiver-manager or holder was subrogated would have, or, if a judgment has been recovered for the amount paid by the director, the director is entitled to an assignment of the judgment.
PART 17
LIQUIDATION, DISSOLUTION AND REVIVAL
338(1) Subject to Parts 12 and 13, on the liquidation and dissolution of a cooperative and after the payment of all of its debts and liabilities, including any declared and unpaid dividends, the amount to be paid to the holders of any investment shares and the amount to be paid on the redemption of membership shares and the repayment of member loans and patronage loans, the remaining property of the cooperative shall be distributed or disposed of
(a) to another cooperative;
(b) to a Canadian organization or association that is a registered charity or a registered Canadian amateur athletic association, as defined in subsection 248(1) of the Income Tax Act (Canada);
(c) to The Cooperative Promotion Board continued under The Cooperative Promotion Trust Act;
(d) equally among the persons, who were members of the cooperative during the financial year in which it was resolved to liquidate and dissolve the cooperative, or who were members of the cooperative during the financial year in which the cooperative ceased to carry on active business;
(e) among the persons who were members of the cooperative during the financial year of the cooperative in which the cooperative ceased to carry on active business and the five financial years of the cooperative immediately preceding that financial year, on the basis of the patronage returns allocated to those persons during those financial years;
(f) among the persons, who were members of the cooperative during the financial year in which it was resolved to liquidate and dissolve the cooperative, or who were members of the cooperative during the financial year in which the cooperative ceased to carry on active business, on the basis of patronage returns allocated to those members during a period of not less than three years as shall be specified in the articles or by-laws of the cooperative;
(g) in accordance with any combination of clauses (a), (b), (c), (d), (e) and (f) or any of them; or
(h) to such persons as the regulations may prescribe.
Dissolution of community service cooperatives
338(2) Notwithstanding subsection (1), a cooperative that in the opinion of the Registrar was operated entirely for purposes of community service shall, upon the liquidation and dissolution thereof and after payment of all of its debts and liabilities, distribute or dispose of its remaining property
(a) to another cooperative that in the opinion of the Registrar is operating entirely for purposes of community service;
(b) to a Canadian organization or association that is a registered charity or a registered Canadian amateur athletic association, as defined in subsection 248(1) of the Income Tax Act (Canada);
(c) to The Cooperative Promotion Board continued under The Cooperative Promotion Trust Act;
(d) in accordance with any combination of clauses (a), (b) and (c) or any two of them; or
(e) to such persons as the regulations may prescribe.
339(1) When a cooperative is dissolved under this Part, or was dissolved under The Cooperatives Act, being chapter C223 of the Re-enacted Statutes of Manitoba, 1987, any interested person, or any person who would be an interested person if a certificate of its revival is issued under this section, may apply to the Registrar to have the cooperative revived under this Act.
339(2) Articles of revival of a cooperative in a form approved by the Registrar shall be sent to the Registrar.
339(3) On receipt of articles of revival of a cooperative, the Registrar shall issue a certificate of revival to the cooperative, unless the Registrar is of the opinion that issuing the certificate
(a) would result in the cooperative
(i) no longer being organized or operating or carrying on business on a cooperative basis,
(ii) if the cooperative is a housing cooperative, not complying with Part 12, and
(iii) if the cooperative is a worker cooperative, not complying with Part 13; or
(b) would not be advisable for any other valid reason.
339(4) A cooperative is revived under this Act on the day indicated on the certificate of its revival.
339(5) In the same manner and to the same extent as if it had not been dissolved, but subject to any reasonable terms that may be imposed by the Registrar and to the rights acquired by any person after its dissolution, the revived cooperative is
(a) subject to the regulations, restored to its previous position in law, including the restoration of all its property whether acquired before its dissolution or after its dissolution and before its revival and any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and
(b) liable for the obligations that it would have had if it had not been dissolved whether they arise before its dissolution or after its dissolution and before its revival.
339(6) Any legal action respecting the affairs of a revived cooperative, other than those with its affiliates, taken between the time of its dissolution and its revival is valid and effective.
Dissolution if no property and no liability
340(1) A cooperative that has no property and no liabilities may be dissolved by a special resolution of its members and, if the cooperative has issued investment shares, by a special resolution of its shareholders of each class, whether they are otherwise entitled to vote.
Dissolution if property disposed of
340(2) A cooperative that has property or liabilities, or both, may be dissolved by a special resolution of its members and, if the cooperative has issued investment shares, by separate special resolution of its shareholders of each class, whether they are otherwise entitled to vote, if
(a) by the special resolution or resolutions its directors are authorized to cause the cooperative to distribute property and discharge liabilities; and
(b) the cooperative has distributed property and discharged liabilities before it sends articles of dissolution to the Registrar under subsection (3).
340(3) Articles of dissolution of a cooperative in a form approved by the Registrar shall be sent to the Registrar.
340(4) On receipt of articles of dissolution of a cooperative, the Registrar shall issue a certificate of its dissolution.
340(5) A cooperative ceases to exist on the day indicated in the certificate of its dissolution.
Proposing liquidation and dissolution
341(1) The directors of a cooperative may propose, or a member of a cooperative may, in accordance with section 230, make a proposal for, the voluntary liquidation and dissolution of the cooperative.
341(2) Notice of any meeting of a cooperative at which its voluntary liquidation and dissolution is to be proposed shall set out the terms of the proposal.
341(3) A cooperative may liquidate and dissolve by a special resolution of its members and, if the cooperative has issued investment shares, by a special resolution of its shareholders of each class, whether they are otherwise entitled to vote.
Statement of intent to dissolve
341(4) A statement of intent to dissolve a cooperative in a form approved by the Registrar shall be sent to the Registrar.
Certificate of intent to dissolve
341(5) On receipt of a statement of intent to dissolve a cooperative, the Registrar shall issue to the cooperative a certificate of intent to dissolve it.
341(6) On the issue of a certificate of intent to dissolve a cooperative, the cooperative shall cease to carry on business except to the extent necessary for the liquidation, but its corporate existence continues until the Registrar issues a certificate of its dissolution.
341(7) After the issue of a certificate of intent to dissolve a cooperative, it shall, without delay,
(a) cause a notice to be sent to each known creditor of the cooperative;
(b) publish notice in the gazette and once in a newspaper published or distributed in the place where the cooperative has its registered office and take reasonable steps to give notice of the proposed dissolution of the cooperative in every jurisdiction where the cooperative carries on business;
(c) proceed to collect its property, dispose of its properties that are not to be distributed in kind to its members or shareholders, if any, discharge all its obligations and do all other acts required to liquidate its business; and
(d) after giving the notice required under clause (a) and adequately providing for the payment or discharge of all its obligations, but subject to its articles and Parts 12 and 13, if applicable, distribute its remaining property among its members according to their respective rights.
342(1) Any interested person may, at any time during the liquidation of a cooperative, apply to the court for an order that the liquidation be continued under the supervision of the court as provided in this Part, and on the application the court may so order and make any further order it thinks fit.
342(2) A person applying to the court under this section shall give the Registrar notice of the application.
343(1) At any time after issue of a certificate of intent to dissolve a cooperative and before issue of a certificate of its dissolution, a certificate of intent to dissolve the cooperative may be revoked by sending the Registrar a statement of the revocation of intent to dissolve the cooperative in a form approved by the Registrar, if the revocation is approved in the same manner as the resolution to dissolve the cooperative was approved under subsection 341(3).
Certificate of revocation of intent to dissolve
343(2) On receipt of a statement of revocation of intent to dissolve a cooperative, the Registrar shall issue to the cooperative a certificate of the revocation of intent to dissolve it.
343(3) On the day indicated in the certificate of revocation of intent to dissolve a cooperative, the revocation is effective and the cooperative may continue to carry on its business or businesses.
344(1) If a certificate of intent to dissolve a cooperative has not been revoked and the cooperative has complied with subsection 341(7), articles of its dissolution in a form approved by the Registrar shall be sent to the Registrar.
344(2) On receipt of articles of dissolution of a cooperative, the Registrar shall issue to the cooperative a certificate of its dissolution.
344(3) The cooperative ceases to exist on the day indicated in the certificate of its dissolution.
345(1) Subject to subsections (2) and (3), the Registrar may dissolve a cooperative by issuing a certificate of its dissolution under this section if the cooperative
(a) has not commenced business within three years after the day indicated in its certificate of incorporation;
(b) has not carried on its business for three consecutive years; or
(c) is in default for a period of two years in sending the Registrar any fee, notice or document required by this Act;
(d) repealed, S.M. 2000, c. 14, s. 22.
345(2) The Registrar shall not dissolve a cooperative under this section until
(a) 90 days has elapsed since a notice of intent to dissolve the cooperative has been given to the cooperative and to each of its directors; and
(b) a notice of intent to dissolve the cooperative has been published in a publication generally available to the public.
345(3) Where notice of intent to dissolve a cooperative has been given under subsection (2), unless the cooperative remedies the default or cause to the contrary has been shown or an order has been made by the court under section 349, the Registrar shall, after the end of the 90 days referred to in subsection (2), issue to the cooperative a certificate of its dissolution.
345(4) A cooperative ceases to exist on the day indicated in the certificate of its dissolution.
346(1) An interested person may apply to the court for an order dissolving a cooperative if the cooperative has
(a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings, except an annual meeting of its shareholders if a unanimous agreement of the cooperative contains a provision that eliminates the need for meetings of its shareholders as authorized under subsection 217(6);
(b) contravened section 13, subsection 24(2) or section 28, 257 or 259; or
(c) procured any certificate under this Act by misrepresentation.
346(2) A person applying to the court under this section shall give the Registrar notice of the application.
346(3) On an application under this section in respect of a cooperative, the court may order that the cooperative be dissolved or that it be liquidated and dissolved under the supervision of the court, and the court may make any other order it thinks fit.
346(4) On receipt of an order under this section, or section 347, the Registrar shall
(a) if the order is to dissolve a cooperative, issue a certificate of dissolution of the cooperative in a form approved by the Registrar; or
(b) if the order is to liquidate and dissolve a cooperative under the supervision of the court, issue a certificate of intent to dissolve the cooperative in a form approved by the Registrar and publish notice of the order in a publication generally available to the public.
346(5) A cooperative ceases to exist on the day indicated in the certificate of its dissolution.
347(1) The court may order the liquidation and dissolution of a cooperative or any of its affiliates on the application of a member or shareholder of the cooperative if the court is satisfied
(a) that the cooperative no longer carries on business or is no longer organized or operating on a cooperative basis;
(b) that
(i) an act or omission of the cooperative or any of its affiliates effects a result,
(ii) the business or affairs of the cooperative or any of its affiliates are or have been carried on or conducted in a manner, or
(iii) the powers of the directors of the cooperative or any of its affiliates are or have been exercised in a manner,
that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, a member, shareholder, security holder, creditor, director or officer of the cooperative; or
(c) that events have occurred that entitle a member or shareholder of the cooperative, in accordance with a unanimous agreement of the cooperative, to demand that the cooperative be dissolved or that it is just and equitable that the cooperative be liquidated and dissolved.
347(2) On an application under this section, the court may make any order under this section or section 365 that it thinks fit.
347(3) Section 366 applies to an application under this section.
348(1) An application under subsection 342(1) to the court to supervise a voluntary liquidation and dissolution of a cooperative shall state the reasons, verified by an affidavit of the applicant, why the court should supervise the liquidation and dissolution.
348(2) If the court makes an order applied for under subsection 342(1) to supervise the liquidation and dissolution of a cooperative, the liquidation and dissolution of the cooperative continues under the supervision of the court in accordance with this Act.
349(1) An application to the court under subsection 347(1) for the liquidation and dissolution of a cooperative shall state the reasons, verified by an affidavit of the applicant, why the cooperative should be liquidated and dissolved.
349(2) On an application under subsection 347(1) for the liquidation and dissolution of a cooperative, the court may make an order requiring the cooperative and any person who has an interest in it or claim against it to show cause, at a specified time and place, not less than four weeks after the day the order is made, why the cooperative should not be liquidated and dissolved.
349(3) On an application under subsection 347(1) for the liquidation and dissolution of a cooperative, the court may order the directors and officers of the cooperative to provide the court with all material information known to or reasonably ascertainable by them, including
(a) financial statements of the cooperative;
(b) the name and address of each of its members and shareholders; and
(c) the name and address of each known creditor of the cooperative or claimant against the cooperative, including any creditor or claimant with unliquidated, future or contingent claims, and any person with whom the cooperative has a contract.
349(4) A copy of an order made under subsection (2) shall be
(a) published as directed in the order, at least once in each week before the time appointed for the hearing, in a publication generally available to the public; and
(b) served on the Registrar and each person named in the order.
349(5) Publication and service of an order under this section that is in respect of a cooperative shall be effected by the cooperative or by any other person and in any manner that the court may order.
350 In connection with the liquidation and dissolution of a cooperative, the court may, if it is satisfied that the cooperative is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit, including an order,
(a) to liquidate the cooperative;
(b) appointing a liquidator to carry out the liquidation, with or without security, and fixing the remuneration of, or replacing, the liquidator;
(c) appointing inspectors or referees to carry out duties and functions under the order, specifying those duties and functions and their powers, and fixing their remuneration, or replacing the inspectors or referees;
(d) determining the notice to be given to any interested person, or dispensing with notice to any person;
(e) determining the validity of any claim made against the cooperative;
(f) at any stage of the proceedings, restraining the directors and officers of the cooperative from
(i) exercising any of their powers, or
(ii) collecting or receiving any debt or other property of the cooperative, and from paying out or transferring any property of the cooperative, except as permitted by the court;
(g) determining and enforcing the duty or liability of any present or former director, officer, member or shareholder of the cooperative
(i) to the cooperative, or
(ii) for an obligation of the cooperative;
(h) approving the payment, satisfaction or compromise of claims against the cooperative and the retention of its assets for those purposes, and determining the adequacy of provisions for the payment or discharge of its obligations, whether liquidated, unliquidated, future or contingent;
(i) disposing of or destroying the documents and records of the cooperative;
(j) on the application of a creditor, the inspectors or the liquidator, directions on any matter arising on the liquidation;
(k) after notice has been given to all interested parties, relieving the liquidator from an omission or default on any terms that the court thinks fit and confirming any act of the liquidator;
(l) subject to section 356, approving any proposed interim or final distribution to members or shareholders of the cooperative in money or in property in accordance with their respective rights;
(m) disposing of any property that belongs to creditors, members or shareholders of the cooperative who cannot be found;
(n) on the application of any director, officer, member, shareholder or creditor of the cooperative, or the liquidator,
(i) staying the liquidation on any terms and conditions that the court thinks fit,
(ii) continuing or discontinuing the liquidation proceedings, or
(iii) requiring the liquidator to restore to the cooperative all its remaining property; and
(o) after the liquidator has rendered a final account to the court, dissolving the cooperative.
351 The liquidation of a cooperative commences when the court makes an order for its liquidation.
Cessation of business and powers
352(1) If the court makes an order for liquidation of a cooperative
(a) the cooperative continues in existence but shall cease to carry on business, except business that is in the liquidator's opinion required for an orderly liquidation; and
(b) the powers of the directors, members and shareholders of the cooperative cease and vest in the liquidator, except as specifically authorized by the court.
352(2) The liquidator of a cooperative may delegate any of the powers vested in the liquidator by clause (1)(b) to the directors or members of the cooperative.
353(1) When making an order for the liquidation of a cooperative or at any time after making one, the court may appoint any person, including a director, officer, member or shareholder of the cooperative, as liquidator of the cooperative.
353(2) If an order for the liquidation of a cooperative has been made and the office of liquidator of the cooperative is or becomes vacant, the property of the cooperative is under the control of the court until the office of the liquidator is filled.
354 A liquidator of a cooperative shall, without delay after being appointed,
(a) give notice of the appointment to each claimant against, and creditor of, the cooperative known to the liquidator;
(b) publish notice of the appointment in a publication generally available to the public and take reasonable steps to give notice of the appointment in each province or other jurisdiction where the cooperative carries on business, requiring
(i) any person who is indebted to the cooperative to render an account and pay any amount owing to the liquidator at the time and place specified,
(ii) any person who possesses property of the cooperative to deliver it to the liquidator at the time and place specified, and
(iii) any person who has a claim against the cooperative, whether liquidated, unliquidated, future or contingent, to present particulars of it in writing to the liquidator not later than two months after the first publication of the notice;
(c) take the property of the cooperative into custody and control;
(d) open and maintain a trust account for money received by the liquidator in the course of liquidation;
(e) keep accounts of the moneys of the cooperative received and paid out in the course of liquidation;
(f) maintain separate lists of the members, shareholders and creditors of the cooperative and other persons who have claims against the cooperative;
(g) if at any time the liquidator determines that the cooperative is unable to pay or adequately provide for the discharge of its obligations, apply to the court for directions;
(h) deliver to the court and to the Registrar, at least once in every twelve month period after appointment or more often as the court may require, financial statements of the cooperative in the form required by section 257, or in any other form as the liquidator may think proper or that the court may require; and
(i) after the final accounts are approved by the court, distribute any remaining property of the cooperative among its members and shareholders according to their respective rights.
355(1) A liquidator of a cooperative may
(a) retain lawyers, notaries, accountants, engineers, appraisers and other professionals;
(b) bring, defend or take part in any civil, criminal, administrative, investigative or other action or proceeding in the name and on behalf of the cooperative;
(c) carry on the business of the cooperative as required for an orderly liquidation;
(d) sell any property of the cooperative by public auction or private sale;
(e) do all acts and execute any documents in the name and on behalf of the cooperative;
(f) borrow money on the security of the property of the cooperative;
(g) settle or compromise any claims by or against the cooperative; and
(h) do all other things necessary for the liquidation of the cooperative and distribution of its property.
355(2) A liquidator of a cooperative is not liable under this Part if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances to prevent the failure to fulfill their duties, including reliance in good faith on financial statements of the cooperative, on the reports of experts and on information presented by professionals or by officers of the cooperative.
355(3) If a liquidator of a cooperative has reason to believe that any property of the cooperative is in the possession or control of a person or that anyone has concealed, withheld or misappropriated any property of the cooperative, the liquidator may apply to the court for, and the court may make, an order requiring the person to appear before the court at the time and place designated in the order and to be examined.
355(4) If the examination conducted pursuant to an order made under subsection (3) discloses that any person has concealed, withheld or misappropriated property of the cooperative, the court may order the person to restore it or pay compensation to the liquidator.
356(1) A liquidator of a cooperative shall pay the costs of its liquidation out of its property and shall pay or make adequate provision for all claims against it.
356(2) The liquidator of a cooperative shall, not later than one year after appointment and after paying or making adequate provision for all claims against the cooperative,
(a) apply to the court for approval of the final accounts of the liquidator and, subject to the articles and Parts 12 and 13, an order permitting a distribution in money or in kind of the remaining property of the cooperative to the members and shareholders, if any, according to their respective rights; or
(b) apply to the court for an extension of time for making an application under clause (a), setting out the reasons for the extension.
356(3) If a liquidator of a cooperative fails to make the application required by subsection (2), a member or shareholder of the cooperative may apply to the court for an order for the liquidator to show cause why a final accounting and distribution should not be made.
356(4) A liquidator of a cooperative shall give notice of the intention of the liquidator to make an application under subsection (2) to the Registrar, to each inspector appointed under section 350, to each member or shareholder of the cooperative and to any person who provided a security or fidelity bond for the liquidation, and shall publish the notice in a newspaper published or distributed in the place where the cooperative has its registered office, in any manner set out in the by-laws or as otherwise directed by the court.
356(5) If the court approves the final accounts rendered by the liquidator of a cooperative, the court shall make an order
(a) directing the Registrar to issue a certificate of dissolution of the cooperative;
(b) directing the custody or disposal of the documents of the cooperative; and
(c) discharging the liquidator, subject to the remaining duty required under subsection (6).
356(6) The liquidator of a cooperative shall send to the Registrar without delay a certified copy of the order described in subsection (5) in respect of the liquidation of the cooperative.
356(7) On receipt of the order described in subsection (5) in respect of the liquidation of a cooperative, the Registrar shall issue a certificate of dissolution of the cooperative.
356(8) A cooperative ceases to exist on the day indicated in the certificate of its dissolution.
Right to distribution in money
357 A member or shareholder of a cooperative may apply to the court for an order requiring the distribution of the property of the cooperative to be in money if, in the course of the liquidation of the cooperative, the members and shareholders resolve or the liquidator proposes to
(a) exchange all or substantially all the property of the cooperative for securities of another body corporate that are to be distributed to the members and shareholders, if any, of the cooperative; or
(b) distribute all or part of the property of the cooperative in kind to the members and shareholders, if any, of the cooperative.
358 On an application under subsection 357 in respect of a cooperative, the court, subject to the articles and Parts 12 and 13, may order
(a) that all the property of the cooperative be converted into and distributed in money; or
(b) that the claims of a member or shareholder of the cooperative applying under this section be satisfied by a distribution in money, in which case subsections 320(19) and (20) apply.
359 A person who has been granted custody of the documents of a dissolved cooperative remains liable to produce them for six years after its dissolution or until the end of any other shorter period that may be ordered under subsection 356(5).
360(1) In this section, "member" and "shareholder" includes their heirs and legal representatives.
360(2) Notwithstanding the dissolution of a cooperative under this Act,
(a) a civil, criminal, administrative, investigative or other action or proceeding commenced by or against the cooperative before its dissolution may be continued as if it had not been dissolved;
(b) a civil, criminal, administrative, investigative or other action or proceeding may be brought against the cooperative within two years after its dissolution as if it had not been dissolved; and
(c) any property that would have been available to satisfy a judgment or order if the cooperative had not been dissolved remains available for those purposes.
360(3) Service of a document on a cooperative after its dissolution may be effected by serving the document on a person named as an officer of the cooperative in the most recent notice on the records of the Registrar.
360(4) Notwithstanding the dissolution of a cooperative under this Act, a member or shareholder of the cooperative to whom any of its property has been distributed is liable to any person claiming under subsection (2) to the extent of the amount distributed to that member or shareholder, and an action to enforce the liability may be brought within two years after the dissolution of the cooperative.
360(5) The court may order an action referred to in subsection (4) against a cooperative to be brought against the persons who were its members or shareholders as a class, subject to any conditions that the court thinks fit, and, if the plaintiff establishes a claim, the court may refer the proceedings to a referee or other officer of the court who may
(a) add as a party to the proceedings each member or shareholder of the cooperative who was found by the plaintiff;
(b) determine, subject to subsection (4), the amount that each of those members and shareholders shall contribute towards satisfaction of the plaintiff's claim; and
(c) direct payment of the amounts so determined.
361(1) On the dissolution of a cooperative under this Act, the portion of the property to be distributed to a creditor, member or shareholder of the cooperative who cannot be found shall be converted into money and paid to the Minister of Finance.
361(2) A payment under subsection (1) in respect of a creditor, member or shareholder of a cooperative is deemed to be in satisfaction of a debt or claim of the creditor, member or shareholder.
361(3) If at any time a person establishes their entitlement to any money paid to the Minister of Finance under subsection (1), the Minister of Finance shall pay the person an equivalent amount out of the Consolidated Fund.
362(1) Subject to subsection 360(2) and section 361, property of a cooperative that has not been disposed of at the day of its dissolution under this Act vests in the Crown.
362(2) If a cooperative is revived as a cooperative under section 339, any property, other than money, that vested in the Crown under subsection (1) and that has not been disposed of shall be returned to the cooperative, and there shall be paid to the cooperative out of the Consolidated Fund
(a) an amount equal to any money received by the Crown under subsection (1); and
(b) if property other than money vested in the Crown under subsection (1) and the property has been disposed of, an amount equal to the lesser of
(i) the value of the property at the date it vested in the Crown, and
(ii) the amount realized by the Crown from the disposition of the property.
PART 18
REMEDIES, OFFENCES AND PENALTIES
363 In this Part,
"action" means an action taken under this Act; (« action »)
"complainant" means
(a) a member or former member of a cooperative,
(b) a registered holder or beneficial owner, or a former registered holder or beneficial owner, of a security of a cooperative or any of its affiliates,
(c) a director or an officer, or a former director or officer, of a cooperative or any of its affiliates,
(d) a creditor of a cooperative,
(e) the Registrar, or
(f) any other person who, in the opinion of the court, is a proper person to make an application under this Part. (« plaignant »)
Commencement of derivative action
364(1) Subject to subsection (2) a complainant may apply to the court for leave to bring an action in the name and on behalf of a cooperative or any of its subsidiaries, or to intervene in an action to which the cooperative or any of its subsidiaries is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the cooperative or subsidiary.
364(2) The court shall not grant an order on an application made under subsection (1) by a complainant to bring an action in the name and on behalf of a cooperative or its subsidiary, or to intervene in an action to which the cooperative or its subsidiary is a party unless the court is satisfied that
(a) if the directors of the cooperative or its subsidiary do not bring, diligently prosecute, defend or discontinue the application, the complainant has given reasonable notice to the directors of the cooperative or its subsidiary of the complainant's intention to apply to the court under subsection (1);
(b) the complainant is acting in good faith; and
(c) it appears to be in the interests of the cooperative or its subsidiary to bring, prosecute, defend or discontinue the action.
364(3) In granting an order on an application made under subsection (1) by a complainant to bring an action in the name and on behalf of a cooperative or its subsidiary, or to intervene in an action to which the cooperative or its subsidiary is a party, the court may make any order it considers appropriate, including an order
(a) authorizing the complainant or any other person to control the conduct of the action to the extent that the control would otherwise be at the discretion of the cooperative or its subsidiary;
(b) giving directions for the conduct of the action;
(c) directing that an amount adjudged payable by a defendant in the action be paid, in whole or in part, directly to a former or present member of the cooperative or to a former or present security holder of the cooperative or its subsidiary instead of to the cooperative or its subsidiary; or
(d) requiring the cooperative or its subsidiary to pay reasonable costs incurred by the complainant in connection with the application or the action or both.
Application to court re oppression
365(1) A complainant may apply to the court for an order under this section.
365(2) Where, on an application under subsection (1) in respect of a cooperative, the court is satisfied that
(a) any act or omission of the cooperative effects a result; or
(b) the business or affairs of the cooperative are or have been carried on or conducted in a manner; or
(c) the powers of the directors of the cooperative are or have been exercised in a manner;
that is oppressive or unfairly prejudicial or that unfairly disregards the interests of any member, security holder, creditor, director or officer of the cooperative, the court may make an order to rectify the matters complained of.
365(3) Where the court is authorized under subsection (2) to make an order on an application made under subsection (1) in respect of a cooperative, the court may make any order that it considers appropriate, including an order
(a) restraining the conduct complained of;
(b) appointing a receiver or receiver-manager of the cooperative;
(c) requiring the cooperative to amend an agreement with its members generally or with a member of the cooperative;
(d) regulating the affairs of the cooperative by amending its articles or by-laws or creating or amending a unanimous agreement;
(e) directing an issue or exchange of its securities;
(f) directing changes in its directors;
(g) determining whether a person is or is qualified to be a member of the cooperative;
(h) determining any matter in regard to the relations between the cooperative and its members or any of them;
(i) subject to subsection (6), directing the cooperative or any other person to purchase its securities owned by any holder of the securities;
(j) subject to subsection (6), directing the cooperative or any other person to pay to a holder of securities of the cooperative any part of the money paid by the holder for the securities;
(k) subject to subsection (6), directing the cooperative to redeem its membership shares, repay its member loans or to pay to a member of the cooperative any other amount standing to the member's credit in the records of the cooperative;
(l) varying or setting aside a transaction or contract to which the cooperative is a party and compensating the cooperative or any other party to the transaction or contract;
(m) directing the production and delivery within a specified time of financial statements of the cooperative;
(n) directing an audit of the cooperative or an accounting for any transaction entered into, or business carried on, by the cooperative;
(o) compensating an aggrieved person;
(p) directing rectification of the registers or other records of the cooperative under section 368;
(q) liquidating and dissolving the cooperative;
(r) directing a special audit or an investigation under section 323; or
(s) requiring the trial of an issue.
Duty of directors members and shareholders
365(4) If an order made under this section directs an amendment of the articles or by-laws of a cooperative,
(a) its directors, members and shareholders shall comply with subsection 321(5); and
(b) no other amendment to its articles or by-laws may be made without the consent of the court, until the court orders otherwise.
365(5) A member or shareholder of a cooperative is not entitled to dissent under section 320 if an amendment to the articles of the cooperative is effected under this section.
365(6) No cooperative may make a payment to a member or shareholder of the cooperative under an order of the court if there are reasonable grounds for believing that
(a) the cooperative is, or would after that payment be, unable to pay its liabilities as they become due; or
(b) the realizable value of the cooperative's assets after the payment would be less than the total of
(i) its liabilities, and
(ii) the amount that would be required to pay the holders of securities who have a right to be paid on a redemption or liquidation, rateably with or in priority to the holders of the securities to be purchased or redeemed by the payment.
365(7) An applicant under this section may apply for an order under section 347 instead of the order under this section.
Member or shareholder approval not decisive
366(1) No application made and no action brought or intervened in under this Part is to be stayed or dismissed solely because it is shown that an alleged breach of a right or duty owed to the cooperative or any of its subsidiaries has been or may be approved by the members or shareholders, but evidence of approval by the members or shareholders may be taken into account by the court in making an order under section 347 or this Part.
366(2) No application made and no action brought or intervened in under this Part is to be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on any terms that the court considers appropriate.
366(3) If the court determines that the interests of a complainant may be substantially affected by a stay, discontinuance, settlement or dismissal mentioned in subsection (2), the court may order any party to the application or action to give notice of the application or action to the complainant.
366(4) A complainant is not required to give security for costs in an application made or action brought or intervened in under this Part.
366(5) In an application made or an action brought or intervened in under this Part in respect of a cooperative or its subsidiary, the court may at any time order the cooperative or the subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable for any interim costs so paid on the final disposition of the application or action.
367(1) In this section
"business combination" means an acquisition of all or substantially all the property of one entity by another or an amalgamation of two or more entities; (« regroupement d'entreprises »)
"call" means an option transferable by delivery, to demand delivery of a specified number or amount of securities at a fixed price within a specified time but does not include an option or right to acquire securities of the cooperative that granted the option or right to acquire; (« option d'achat »)
"insider", in respect of a cooperative, means
(a) the cooperative,
(b) an affiliate of the cooperative,
(c) a director or an officer of the cooperative,
(d) a member who controls more than 10% of the voting rights that may be exercised to elect or appoint a director of the cooperative,
(e) a person who beneficially owns more than 10% of the shares of the cooperative or who exercises control or direction over more than 10% of the votes attached to the shares of the cooperative,
(f) a person employed or retained by the cooperative, and
(g) an individual who receives specific confidential information from a person described in this subsection or in subsection (2), including from an individual described in this clause, and who has knowledge that the information is given by such a person; (« initié »)
"investment share" means an investment share of a cooperative, and includes
(a) a security currently convertible into such an investment share, and
(b) a currently exercisable option or right to acquire such an investment share or such a convertible security; (« part de placement »)
"officer" of an entity means:
(a) the chairperson of the board of directors of the entity, the president, vice-president, secretary, treasurer, comptroller, general counsel, general manager or managing director of the entity, or any other individual who performs functions for the entity similar to those normally performed by an individual occupying any of those offices, and
(b) where the entity is a distributing cooperative, each of the five highest paid employees of the cooperative, including any individual mentioned in clause (a); (« dirigeant »)
"put" means an option, transferable by delivery, to deliver a specified number or amount of securities at a fixed price within a specified time. (« option de vente »)
367(2) For the purposes of this section,
(a) a director or an officer of an entity, or an individual acting in a similar capacity, that is an insider of a distributing cooperative is deemed to be an insider of the distributing cooperative;
(b) a director or an officer of an entity, or an individual acting in a similar capacity, that is a subsidiary of a distributing cooperative is deemed to be an insider of its holding distributing cooperative;
(c) a person is deemed to beneficially own investment shares beneficially owned by an entity controlled directly or indirectly by the person;
(d) an entity is deemed to beneficially own investment shares beneficially owned by its affiliates; and
(e) the acquisition or disposition by a person of an option or right to acquire an investment share is deemed to be a change in the beneficial ownership of the share to which the option or right to acquire relates.
367(3) For the purpose of this section, the sale of membership shares of a cooperative to its members or the making of a member loan or patronage loan to a cooperative is not a distribution to the public.
367(4) Where at any time an entity becomes an insider of a cooperative or enters into a business combination with a cooperative or the cooperative becomes an insider of the entity, for the purposes of this section, an individual who at that time is a director or officer of the entity is deemed to have been an insider of the cooperative for six months, or any shorter period during which the individual was a director or an officer of the entity, before that time.
367(5) An insider of a distributing cooperative shall not knowingly sell, directly or indirectly, an investment share of the distributing cooperative or any of its affiliates if the insider selling the share does not own or has not fully paid for the share.
367(6) An insider of a cooperative shall not knowingly, directly or indirectly, buy a put or sell a call in respect of an investment share of the cooperative or any of its affiliates.
367(7) Notwithstanding subsection (5), an insider of a cooperative may sell an investment share of the cooperative that the insider does not own if the insider owns another investment share convertible into the share sold or an option or right to acquire the share sold and, no later than ten days after the sale, the insider
(a) exercises the conversion privilege, option or right and delivers the share so acquired to the purchaser; or
(b) transfers the convertible share, option or right to the purchaser.
367(8) An insider of a cooperative who, in connection with a transaction in a security, membership share or member loan of the cooperative or any of its affiliates, makes use of any specific confidential information for the insider's own benefit or advantage that, if generally known, might reasonably be expected to affect materially the value of the security
(a) is liable to compensate any person for any direct loss suffered by them as a result of the transaction, unless the information was known or in the exercise of reasonable diligence should have been known to them; and
(b) is accountable to the cooperative for any direct benefit or advantage received or receivable by the insider as a result of the transaction.
367(9) An action to enforce a right created under subsection (8) may be commenced only within two years after discovery of the facts that gave rise to the cause of action.
Application to court to rectify records
368(1) Where the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the registers or other records of a cooperative, the cooperative or a member or other security holder thereof or any aggrieved person may apply to the court for an order that the registers or records be rectified.
368(2) On an application made under this section in respect of the registers or records of a cooperative, the court may make any order it considers appropriate, including an order
(a) requiring the registers or records of the cooperative to be rectified;
(b) restraining the cooperative from calling or holding a meeting or allocating or paying a dividend or interest on shares or a patronage return before rectification of the registers or records;
(c) determining the right of a party to the proceedings to have the party's name entered or retained in or deleted or omitted from the registers or records of the cooperative, whether the issue arises between two or more members or security holders, or alleged members or security holders, or between the cooperative and a member or security holder or alleged member or security holder; or
(d) compensating a party who has incurred a loss because of the wrongful entry, retention, deletion or omission.
369 The Registrar may apply to the court for directions in respect of any matter concerning the Registrar's duties under this Act, and, on the application, the court may give any directions that it thinks fit.
Restraining or compliance order
370 If a cooperative or any director, officer, employee, agent, auditor, trustee, receiver, receiver-manager or liquidator of a cooperative does not comply with this Act or the regulations, or with its articles and by-laws or with a unanimous agreement of the cooperative, a complainant or the Registrar may, in addition to any other right, apply to the court for an order directing any such person to comply with or restraining them from acting in breach of it, and on the application, the court may order compliance and make any further order it thinks fit.
371 Where this Act provides for an application to the court, the application may be made in a summary manner by petition or originating notice of motion or otherwise, as the rules of the court may provide, and subject to any order of the court respecting notice to interested parties or costs or any other matter the court thinks fit.
372 An appeal lies to The Court of Appeal from any order made by the court under this Act.
Offences with respect to reports
373(1) A person who makes or assists in making a report, return, notice or other document required by this Act or the regulations to be sent to the Registrar or to any other person that
(a) contains an untrue statement of a material fact; or
(b) omits to state a material fact required therein or necessary to make a statement contained therein not misleading in the light of the circumstances in which it was made;
is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000. or to imprisonment for a term not exceeding six months or to both.
Liability of director or officer
373(2) Where the person guilty of an offence under subsection (1) is a body corporate, then, whether the body corporate has been prosecuted or convicted, any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the offence is also guilty of an offence and liable on summary conviction to a fine not exceeding $5,000. or to imprisonment for a term not exceeding six months or both.
373(3) No person is guilty of an offence under subsection (1) or (2) if the untrue statement or omission was unknown to the person and in the exercise of reasonable diligence could not have been known to the person.
374 Every person who, without reasonable cause, contravenes a provision of this Act or the regulations, and no other penalty therefor is provided herein, is guilty of an offence and is liable on summary conviction to a fine not exceeding $500.
375 Where a person is convicted of an offence under this Act or the regulations, the convicting court may, in addition to any punishment imposed, order the person to comply with the provisions of the Act or the regulations for the contravention of which the person has been convicted.
376(1) A prosecution for an offence under this Act may be instituted at any time within two years from the time when the subject-matter of the complaint arose, and not later.
376(2) No civil remedy for an act or omission under this Act is suspended or affected because the act or omission is an offence under this Act.
Notice of refusal by Registrar
377(1) The Registrar shall file all documents that are required under this Act to be sent to the Registrar, and if the Registrar refused to file any of those documents, the Registrar shall, not later than 20 days after the later of the receipt of the document and the receipt of any approval that may be required under any other law, give written notice of the refusal to the person who sent the document, giving reasons for the refusal.
377(2) If the Registrar does not file or give written reasons of refusal to file the documents within the 20 days provided for in subsection (1), the Registrar is deemed to have refused to file the document.
Appeal from Registrar's decision
378(1) A person who feels aggrieved by a decision of the Registrar to do any of the following things may apply to the court for an order, including an order requiring the Registrar to change or revoke the decision:
(a) refusal to file in the form submitted any articles or other documents required by this Act to be sent to the Registrar;
(b) giving a name, changing or revoking a name or the refusal to reserve, accept, change or revoke a name under this Act;
(c) refusal to grant an exemption that may be granted under this Act or the regulations;
(d) refusal to issue a certificate of discontinuance;
(e) issuing, or refusing to issue, a certificate of revival or a decision in respect of the terms for revival imposed by the Registrar;
(f) dissolving a cooperative under section 345.
378(2) No action lies against, the Registrar or any officer or employee of the government acting under the direction of the Registrar for anything done or omitted to be done in good faith in the administration of this Act or in the discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.
PART 19
GENERAL PROVISIONS
Notice to directors, members, and shareholders
379(1) A notice or document required by this Act or the regulations, or the by-laws of a cooperative, to be sent to a member, shareholder or director of the cooperative may be given in accordance with the by-laws or in the absence of a provision in the by-laws may be delivered personally or sent by prepaid mail addressed
(a) to the member at the member's latest address as shown in the records of the cooperative or its transfer agent;
(b) to the shareholder at the shareholder's latest address as shown in the records of the cooperative or its transfer agent; and
(c) to the director at the director's latest address as shown in the records of the cooperative or in the last notice filed under section 196.
379(2) For the purposes of this Act, a notice, a document or any information required by this Act, the regulations or the articles or by-laws of a cooperative to be sent or given to a member, shareholder or director of the cooperative or to the Registrar may be sent or given electronically to the member, shareholder, director or Registrar if, and only if,
(a) it is sent or given in accordance with prescribed requirements; and
(b) the articles or by-laws of the cooperative do not provide that it may not be sent or given electronically.
379(3) A notice or document mailed in accordance with subsection (1) to a member, shareholder or director of a cooperative is presumed to be received by the member, shareholder or director at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the member, shareholder or director did not receive the notice or document at that time or at all.
379(4) Where, in accordance with subsection (1), a cooperative mails a notice or document to a person who is a member or shareholder of the cooperative and the notice or document is returned on three consecutive occasions because the person cannot be found, the cooperative is not required to send any further notices or documents to the person until the person informs the cooperative in writing of the person's new address.
379(5) Where the by-laws of a cooperative provide for the giving of a notice to members under subsection (1) by insertion of the notice in a newspaper or other publication, the notice is deemed to be received by the members at the time the publication containing the notice is distributed in the ordinary course.
379(6) Where the by-laws of a cooperative provide for the giving of a notice to members under subsection (1) by posting up the notice in a specified place or places, the notice is deemed to be received by the members at the time the notice is so posted.
Notice to and service upon a cooperative
380 A notice or document required to be sent to or served upon a cooperative may be sent by registered mail to the registered office of the cooperative shown in the latest notice given under subsection 10(3) or 27(4) to the Registrar by the cooperative and, if so sent, is presumed to be received or served at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the cooperative did not receive the notice or document at that time or at all.
381 When a notice or document in respect of a cooperative is required by this Act or the regulations to be given or sent to a person,
(a) the person who is entitled to receive the notice or document may, subject to a unanimous agreement of the cooperative, waive the giving or sending of the notice or document or the time for the giving or sending of the notice or document; or
(b) the person who is entitled to receive the notice or document and the person who is required to give or send it may, subject to a unanimous agreement of the cooperative, agree in writing to shorten the time for giving or sending it.
382(1) Where this Act requires or authorizes the Registrar to issue a certificate or to certify any fact, the certificate shall be signed by the Registrar or by a Deputy Registrar designated under subsection 7(1).
382(2) Except in a proceeding under section 346 to dissolve a cooperative, a certificate referred to in subsection (1) or a certified copy thereof, when introduced as evidence in any civil, criminal or administrative action or proceeding, is conclusive proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate.
Certificates issued by cooperatives
383(1) A certificate that is issued on behalf of a cooperative stating a fact that is set out in its articles or by-laws, in a unanimous agreement of the cooperative, in the minutes of the meetings of its directors, a committee of its directors, its members or its shareholders, or in a trust indenture or other contract to which the cooperative is a party, may be signed by a director, officer or transfer agent of the cooperative.
383(2) When introduced as evidence in any civil, criminal or administrative action or proceeding,
(a) a fact stated in a certificate referred to in subsection (1);
(b) a certified extract from a list of members or from a members or securities register of a cooperative; or
(c) a certified copy of minutes or extract from minutes of a meeting of members, shareholders, directors, or a committee of directors, of a cooperative;
is, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate.
383(3) An entry in a securities register of, or a security certificate issued by, a cooperative is, in the absence of evidence to the contrary, proof that the registered holder is the owner of the securities described in the register or in the certificate.
383(4) An entry in a members' register of, or a certificate of membership or a membership share certificate issued by, a cooperative is, in the absence of evidence to the contrary, proof that the person whose name appears in it or on it is a member or owns the membership shares as set out in the membership share certificate or the register.
Registrar may rely on declarations
384 The Registrar may, for all purposes of this Act, rely on a declaration of a director or officer of a cooperative provided under subsection 308(2), 312(2), 314(4) or (5) or 317(1).
385(1) When a notice or document is required to be sent to the Registrar under this Act, the Registrar may accept a photostatic or photographic copy of it.
Electronic submission of documents etc.
385(2) Except to the extent that may otherwise be prescribed, notices, documents, information or fees that are authorized or required to be submitted to, or issued by, the Registrar under this Act may be submitted or issued in electronic or other form in any manner approved by the Registrar.
385(3) For the purposes of this Act, a document, information or a fee that is submitted in accordance with subsection (2) is deemed to have been received by the Registrar at the time provided in the regulations.
385(4) Subject to the regulations, a document or information that is received by the Registrar under this Act in electronic or other form shall be entered or recorded in a form, whether
(a) a bound or loose leaf form;
(b) a photographic form;
(c) a system of mechanical or electronic data processing; or
(d) any other form of or device for storing information;
that allows the document or information recorded or stored in them to be reproduced within a reasonable time in an intelligible, written English form or written French form.
When notices or documents need not be sent
386 The Registrar may, on any conditions that the Registrar considers appropriate, determine that notices or documents or classes of notices or documents need not be sent to the Registrar under this Act if they are notices or documents that contain information similar to information contained in notices or documents required to be made public under any other Act of the Legislature.
387(1) The Registrar may require that a document or a fact stated in a document required by this Act or the regulations to be sent to the Registrar be verified in accordance with subsection (2).
387(2) A document or fact required by this Act or by the Registrar to be verified may be verified by affidavit, affirmation or statutory declaration sworn, affirmed or declared under The Manitoba Evidence Act before a person before whom affidavits, affirmations or statutory declarations are authorized under that Act to be sworn, affirmed or declared.
387(3) The Registrar may require a body corporate to authenticate a document that is required under this Act to be sent to or filed by the Registrar, and the authentication may be signed by the secretary, any director of the body corporate or any other individual authorized by its board of directors to sign the authentication, or by the solicitor for the body corporate.
388(1) For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation and order made under and in accordance with the authority granted by this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders
(a) prescribing any matter or thing required or authorized by this Act to be prescribed or providing for any matter or thing required or authorized by this Act to be provided;
(b) requiring the payment of a fee for the filing, examination or copying of any document, or for any action that the Registrar is required or authorized to take under this Act, and prescribing the amount thereof;
(c) respecting the content of offering statements required to be sent to the Registrar in respect of issues of shares or other securities of cooperatives;
(d) respecting any exemptions permitted by this Act and providing rules in respect of any such exemptions;
(e) respecting the names of cooperatives;
(f) respecting the par value of and the preferences, rights, conditions, restrictions, limitations or prohibitions attaching to shares or classes of shares of cooperatives;
(g) respecting the purposes that cooperatives are to fulfil;
(h) respecting the types of cooperatives that may be reflected in the articles and names of cooperatives;
(i) respecting the procedures on appeals taken under section 280;
(j) respecting restrictions on the business or businesses that cooperatives may carry on;
(k) prescribing, for the purpose of clause 257(1)(a), the standards as they exist from time to time of an accounting body named in the regulations that are to be followed.
388(2) Where no fee is fixed in the regulations for any service performed under this Act, the minister may fix a fee therefor.
389(1) In this section, "statement" means a statement of intent to dissolve a cooperative referred to in section 341 and a statement of revocation of intent to dissolve a cooperative referred to in section 343.
389(2) Where this Act requires articles or a statement relating to a cooperative to be sent to the Registrar, unless otherwise specifically provided herein
(a) two copies of the articles or statement shall be signed by a director or an officer of the cooperative or, in the case of articles of incorporation, by the incorporators; and
(b) if the articles or statement conform to the law and are accompanied by all the required by-laws or other documents, and the prescribed fees in respect thereof have been paid, the Registrar shall, subject, where required by this Act, to being satisfied that it is advisable,
(i) endorse on each of the two copies of the articles or statement a certificate indicating the day on which the articles or statement become effective,
(ii) file one copy of the articles or statement endorsed in accordance with sub-clause (i),
(iii) send the remaining copy of the articles or statement, endorsed in accordance with sub-clause (i), to the cooperative or its representative, and
(iv) publish in the gazette a notice of the issue of the certificate and of the day the articles or statement to which it relates become effective.
Time of effect of articles etc.
389(3) The day indicated on a certificate issued under subsection (2) as the day the articles or statement become effective shall not be earlier than the day on which the Registrar received the articles or statement or the court order pursuant to which the certificate is issued.
389(4) A signature required on a certificate issued by the Registrar under this Act may be printed or otherwise reproduced on the certificate or may be made in accordance with the regulations.
389(5) Notwithstanding subsection (3), a certificate of discontinuance issued for the purposes of section 316 or 317 shall indicate that the discontinuance becomes effective on the day the cooperative is continued under The Corporations Act or The Condominium Act or under the laws of another jurisdiction, as the case may be.
389(6) A certificate endorsed in accordance with subsection (2) constitutes a certificate issued under this Act and the articles or a statement so endorsed are effective on the day indicated in the certificate, notwithstanding that any action required to be taken by the Register under this Act with respect to the articles or statement is taken on a later day.
390 The Registrar may provide any person with a certificate that a cooperative has sent to the Registrar a document required to be sent, or has paid any fees prescribed under this Act.
391 The Registrar may alter any notice or document, other than an affidavit, affirmation or statutory declaration, if so authorized by or on behalf of the person who sent the notice or document to the Registrar.
392(1) Where a certificate or order relating to a cooperative containing an error is issued by the Registrar, the Registrar shall issue a corrected order or certificate and may
(a) demand the surrender of the certificate or order containing the error; and
(b) request the directors or members of the cooperative
(i) to pass resolutions,
(ii) to send or deliver to the Registrar the documents required to comply with this Act, or
(iii) to take such other steps as the Registrar may reasonably require.
392(2) A corrected certificate or order issued under subsection (1) has effect from the day the certificate or order that it replaces became effective.
392(3) Where a corrected certificate or order issued under subsection (1) materially amends the terms of the original certificate or order, the Registrar shall forthwith give notice of the correction in the gazette.
393(1) A person who has paid the prescribed fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Registrar and to make copies of it or parts of it. This is subject to subsection (3).
393(2) Upon payment of the prescribed fee, the Registrar shall provide any person with a copy or certified copy of a document or part of a document required by this Act or the regulations to be sent to the Registrar. This is subject to subsection (3).
Exceptions to subsections (1) and (2)
393(3) Subsections (1) and (2) do not apply to
(a) the by-laws of a cooperative; or
(b) an inspector's report sent to the Registrar under subsection 324(2).
394(1) Records required by this Act to be prepared and maintained by the Registrar may be prepared and maintained
(a) in bound or loose-leaf form;
(b) in photographic form;
(c) by any system of mechanical or electronic data processing; or
(d) by any other form of or device for storing information;
that allows any information recorded or stored in them to be reproduced within a reasonable time in an intelligible, written English form or written French form.
394(2) Where records maintained by the Registrar are prepared and maintained in other than written form,
(a) the Registrar shall furnish any copy required to be furnished under subsection 393(2) in intelligible written form; and
(b) a report reproduced from those records, if it is certified by the Registrar, is admissible in evidence to the same extent as the original records would have been if they had been in written form.
Production of records limitation
394(3) The Registrar is not required to produce any document, other than a certificate and attached articles or statement filed under section 389, after six years after the day the Registrar received it.
394(4) Information or notices required by this Act to be summarized in a publication generally available to the public or to be published by the Registrar may be made available to the public or published by
(a) a system of mechanical or electronic data processing; or
(b) any other form of or device for storing information;
that allows any information recorded or stored in them to be reproduced within a reasonable time in an intelligible, written English form or written French form.
Continuation of former letters patent, etc.
395(1) All letters patent, supplementary letters patent and licences, all cancellations, suspensions, proceedings, acts, registrations and things, and all affidavits, declarations, by-laws, resolutions, regulations and documents that were lawfully granted, issued, imposed, made, taken, done, commenced, filed or passed under any provision of an Act referred to in the definition of "former Act cooperative" in section 1, shall, insofar as
(a) they affect a former Act cooperative; and
(b) if they had been granted, issued, imposed, made, taken, done, commenced, filed or passed after this Act came into force, would have been granted, issued, imposed, made, taken, done, commenced, filed or passed under this Act;
be conclusively deemed to have been granted, issued, imposed, made, taken, done, commenced, filed or passed under this Act and shall, if in force on the coming into force of this Act, be continued under this Act as though they had in fact been granted, issued, imposed, made, taken, done, commenced, filed or passed under this Act.
395(2) Any addition or amendment to or deletion from any provision in the letters patent, supplementary letters patent or by-laws of a former Act cooperative shall be made in accordance with this Act.
Reference to old Companies Act
395(3) Any reference in an Act, letters patent, supplementary letters patent, articles, by-law or resolution to Part X of The Companies Act, being chapter C160 of the Revised Statutes of Manitoba, 1970, as it existed before June 1, 1977, to any provision of that Part or to any procedure under that Part, shall be deemed to be a reference to this Act, to the equivalent provision of this Act or to the equivalent procedure under this Act, as the case may be.
References to former Cooperatives Acts
395(4) Any reference in an Act, letters patent, supplementary letters patent, articles, by-law or resolution
(a) to The Cooperatives Act, being chapter 47 of the Statutes of Manitoba, 1976, to any provision of that Act or to any procedure under that Act; or
(b) to The Cooperatives Act, being chapter C223 of the Re-enacted Statutes of Manitoba, 1987, to any provision of that Act or to any procedure under that Act;
shall be deemed to be a reference to this Act, to the equivalent provision of this Act or to the equivalent procedure under this Act, as the case may be.
Continuance of former Act cooperatives
396(1) On the coming into force of this Act,
(a) each former Act cooperative is deemed to be a cooperative incorporated under this Act;
(b) every provision that is required by this Act to be set out in the articles of incorporation of a cooperative is deemed to be set out in the articles of each former Act cooperative;
(c) every provision that is required by this Act to be provided in the by-laws of a cooperative is deemed to be provided in the by-laws of each former Act cooperative; and
(d) every share that has been issued by a former Act cooperative that is not a membership share, or a share purchased with patronage returns, of the cooperative is deemed to be an investment share of the cooperative.
396(2) Each former Act cooperative shall, not later than five years after the coming into force of this Act, amend its articles to comply with section 9 and amend its by-laws to comply with section 12 and file the amended articles and by-laws with the Registrar.
396(3) If a former Act cooperative fails to comply with subsection (2), the Registrar may, after the expiry of the five years referred to in subsection (2) and after giving not less than 180 days notice to the cooperative, dissolve the cooperative, and subsections 345(3) and (4) apply, with such modifications as the circumstances require.
Effect on members' and shareholders' rights
396(4) An amendment to the articles of a former Act cooperative as required under subsection (2) does not give any member or shareholder of the cooperative a right to dissent under section 320.
NOTE: These sections made up Part 20 of the original Act and contained consequential amendments to other Acts which are now included in those Acts.
PART 21
REPEAL, C.C.S.M. REFERENCE, COMING INTO FORCE