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C.C.S.M. c. C225
The Corporations Act
| Table of Contents | Regulations |
| Sections: 1 - 133(3) | 133(4) - 270 | 271 - 362 |
133(4) If a corporation has only one shareholder, or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.
134(1) If a body corporate or association is a shareholder of a corporation, the corporation shall recognize any individual authorized by a resolution of the directors or governing body of the body corporate or association to represent it at meetings of shareholders of the corporation.
134(2) An individual authorized under subsection (1) may exercise, on behalf of the body corporate or association he represents, all the powers it could exercise if it were an individual shareholder.
134(3) Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present, in person or by proxy, vote, they shall vote as one on the shares jointly held by them.
135(1) Unless the by-laws otherwise provide, voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting.
135(2) A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands.
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.
136(1) Except where a written statement is submitted by a director under subsection 105(2) or by an auditor under subsection 162(5),
(a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and
(b) a resolution in writing dealing with all matters required by this Act to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Act relating to meetings of shareholders, and is effective from the date specified in the resolution, but that date shall not be prior to the date on which the first shareholder has signed.
136(2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders.
137(1) The holders of not less than 5% of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition.
137(2) The requisition referred to in subsection (1), which may consist of several documents of like form each signed by one or more shareholders, shall state the business to be transacted at the meeting and shall be sent to the registered office of the corporation.
137(3) Upon receiving the requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless
(a) a record date has been fixed under subsection 128(2) and notice thereof has been given under subsection 128(4); or
(b) the directors have called a meeting of shareholders and have given notice thereof under section 129; or
(c) the business of the meeting as stated in the requisition includes matters described in clauses 131(5)(b) to 131(5)(e).
137(4) If the directors do not within 21 days after receiving the requisition referred to in subsection (1) call a meeting, any shareholder who signed the requisition may call the meeting.
137(5) A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws, this Part and Part XII.
137(6) Unless the shareholders otherwise resolve at a meeting called under subsection (4), the corporation shall reimburse the shareholders for the expenses reasonably incurred by them in requisitioning, calling and holding the meeting.
138(1) If for any reason it is impracticable to call a meeting of shareholders of a corporation in the manner in which meetings of those shareholders may be called, or to conduct the meeting in the manner prescribed by the by-laws and this Act, or if for any other reason a court thinks fit, the court, upon the application of a director, a shareholder entitled to vote at the meeting or the Director, may order a meeting to be called, held and conducted in such manner as the court directs.
138(2) Without restricting the generality of subsection (1), the court may order that the quorum required by the by-laws or this Act be varied or dispensed with at a meeting called, held and conducted pursuant to this section.
138(3) A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the corporation duly called, held and conducted.
139(1) A corporation or a shareholder or director may apply to a court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.
139(2) Upon an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute;
(b) an order declaring the result of the disputed election or appointment;
(c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the corporation until a new election is held or appointment made;
(d) an order determining the voting rights of shareholders and of persons claiming to own shares.
140(1) A pooling agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as therein provided.
Unanimous shareholder agreement
140(2) An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and a person who is not a shareholder, that restricts, in whole or in part, the powers of the directors to manage the business and affairs of the corporation is valid.
Declaration of single shareholder
140(3) Where a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage the business and affairs of a corporation, the declaration is deemed to be a unanimous shareholder agreement.
140(4) A transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement.
140(5) A shareholder who is a party to a unanimous shareholder agreement has all the rights, powers and duties and incurs the liabilities of a director of the corporation to which the agreement relates to the extent that the agreement restricts the discretion or powers of the directors to manage the business and affairs of the corporation, and the directors are thereby relieved of their duties and liabilities to the same extent.
140(6) Where a unanimous shareholder agreement is executed or terminated, written notice of that fact together with the date of the execution or termination thereof shall be filed with the Director within 15 days.
PART XII
PROXIES
141 In this Part,
"form of proxy" means a written or printed form that, upon completion and execution by or on behalf of a shareholder, becomes a proxy; (« formulaire de procuration »)
"proxy" means a completed and executed form of proxy by means of which a shareholder appoints a proxyholder to attend and act on his behalf at a meeting of shareholders; (« procuration »)
"registrant" means a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction; (« courtier attitré »)
"solicit" or "solicitation" includes
(a) a request for a proxy whether or not accompanied by or included in a form of proxy,
(b) a request to execute or not to execute a form of proxy or to revoke a proxy,
(c) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and
(d) the sending of a form of proxy to a shareholder under section 143,
but does not include
(e) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder, or
(f) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, or
(g) the sending by a registrant of the documents referred to in section 147, or
(h) a solicitation by a person in respect of shares of which he is the beneficial owner; (« sollicitation »)
"solicitation by or on behalf of the management of a corporation" means a solicitation by any person pursuant to a resolution or instructions of, or with the acquiescence of, the directors or a committee of the directors. (« sollicitation effectuée par la direction ou pour son compte »)
142(1) A shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternative proxyholders, who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy.
142(2) A proxy shall be executed by the shareholder or by his attorney authorized in writing.
142(3) A proxy is valid only at the meeting in respect of which it is given or any adjournment thereof.
142(4) A shareholder may revoke a proxy
(a) by depositing an instrument in writing executed by him or by his attorney authorized in writing
(i) at the registered office of the corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment thereof, at which the proxy is to be used, or
(ii) with the chairman of the meeting on the day of the meeting or an adjournment thereof; or
(b) in any other manner permitted by law.
142(5) The directors may specify in a notice calling a meeting of shareholders a time not exceeding 48 hours, excluding Saturdays and holidays, preceding the meeting or an adjournment thereof before which time proxies to be used at the meeting must be deposited with the corporation or its agent.
143(1) Subject to subsection (2), the management of a corporation which has made a distribution to the public shall, concurrently with giving notice of a meeting of shareholders, send a form of proxy in the form required under The Securities Act to each shareholder who is entitled to receive notice of the meeting.
143(2) Where a corporation has fewer than 15 shareholders, two or more joint holders being counted as one shareholder, the management of the corporation is not required to send a form of proxy under subsection (1).
143(3) If the management of a corporation fails to comply without reasonable cause with subsection (1), the corporation is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
Offence of director or officer
143(4) Where a corporation is guilty of an offence under subsection (3), then, whether or not the corporation has been prosecuted or convicted, any director or officer of the corporation who knowingly authorizes, permits or acquiesces in the failure 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 to both.
144(1) A person shall not solicit proxies unless
(a) in the case of solicitation by or on behalf of the management of a corporation, a management proxy circular in the form required under The Securities Act, either as an appendix to or as a separate document accompanying the notice of the meeting; or
(b) in the case of any other solicitation, a dissident's proxy circular, in the form required under The Securities Act, stating the purposes of the solicitation;
is sent to the auditor of the corporation, to each shareholder whose proxy is solicited and, if clause (b) applies, to the corporation.
144(2) A person required to send a management proxy circular or dissident's proxy circular shall send concurrently a copy thereof to the commission together with a copy of the notice of meeting, form of proxy and any other documents for use in connection with the meeting.
144(3) A person who fails to comply with subsections (1) and (2) 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.
Offence of director or officer
144(4) If the person guilty of an offence under subsection (3) is a body corporate, then, whether or not the body corporate has been prosecuted or convicted, any director or officer of the body corporate who knowingly authorizes, permits or acquiesces in the failure 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 to both.
145 Upon the application of an interested person, the commission may make an order on such terms as it thinks fit exempting the person from any of the requirements of section 143 or subsection 144(1), and the order may have retrospective effect.
146(1) A person who solicits a proxy and is appointed proxyholder shall attend in person or cause an alternate proxyholder to attend the meeting in respect of which the proxy is given and shall comply with the directions of the shareholder who appointed him.
146(2) A proxyholder or an alternate proxyholder has the same rights as the shareholder who appointed him to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting and, except where a proxyholder or an alternate proxyholder has conflicting instructions from more than one shareholder, to vote at the meeting in respect of any matter by way of any show of hands.
146(3) Notwithstanding subsections (1) and (2), where the chairman of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to his knowledge will be the decision of the meeting in relation to any matter or group of matters, is less than 5% of all the votes that might be cast at the meeting on such ballot, unless a shareholder or proxyholder demands a ballot,
(a) the chairman may conduct the vote in respect of that matter or group of matters by a show of hands; and
(b) a proxyholder or alternate proxyholder may vote in respect of that matter or group of matters by a show of hands.
146(4) A proxyholder or alternate proxyholder who without reasonable cause fails to comply with the directions of a shareholder under this section 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.
147(1) Shares of a corporation that are registered in the name of a registrant or his nominee and not beneficially owned by the registrant shall not be voted unless the registrant, forthwith after receipt of the notice of the meeting, financial statements, management proxy circular, dissident's proxy circular and any other documents other than the form of proxy sent to shareholders by or on behalf of any person for use in connection with the meeting, sends a copy thereof to the beneficial owner and, except where the registrant has received written voting instructions from the beneficial owner, a written request for such instructions.
147(2) A registrant shall not vote or appoint a proxyholder to vote shares registered in his name or in the name of his nominee that he does not beneficially own unless he receives voting instructions from the beneficial owner.
147(3) A person by or on behalf of whom a solicitation is made shall, at the request of a registrant, forthwith furnish to the registrant at that person's expense the necessary number of copies of the documents referred to in subsection (1) other than copies of the document requesting voting instructions.
147(4) A registrant shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.
Beneficial owner as proxyholder
147(5) If requested by a beneficial owner, a registrant shall appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.
147(6) The failure of a registrant to comply with this section does not render void any meeting of shareholders or any action taken thereat.
147(7) Nothing in this section gives a registrant the right to vote shares that he is otherwise prohibited from voting.
147(8) A registrant who knowingly fails to comply with this section 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.
Offence of director or officer
147(9) If the registrant guilty of an offence under subsection (8) is a body corporate, then, whether or not the body corporate has been prosecuted or convicted, any director or officer of the body corporate who knowingly authorizes, permits or acquiesces in the failure 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 to both.
148(1) If a form of proxy, management proxy circular or dissident's proxy circular contains an untrue statement of a material fact or 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, an interested person or the commission may apply to a court and the court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining the solicitation, the holding of the meeting, or any person from implementing or acting upon any resolution passed at the meeting to which the form of proxy, management proxy circular or dissident's proxy circular relates;
(b) an order requiring correction of any form of proxy or proxy circular and a further solicitation;
(c) an order adjourning the meeting.
148(2) An applicant under this section shall give to the commission notice of the application and the commission is entitled to be heard by counsel or otherwise.
PART XIII
FINANCIAL DISCLOSURE
149(1) The directors of a corporation shall place before the shareholders at every annual meeting
(a) comparative financial statements as prescribed relating separately to
(i) the period that began on the date the corporation came into existence and ended not more than six months before the annual meeting or, if the corporation has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, and
(ii) the immediately preceding financial year;
(b) the report of the auditor, if any; and
(c) any further information respecting the financial position of the corporation and the results of its operations required by the articles, the by-laws or any unanimous shareholder agreement.
149(2) Notwithstanding clause (1)(a), the financial statements referred to in sub-clause (1)(a)(ii) may be omitted if the reason for the omission is set out in the financial statements, or in a note thereto, to be placed before the shareholders at an annual meeting, but a corporation which has made a distribution to the public shall not omit those statements without the consent of the commission.
149(3) A corporation which has made a distribution to the public shall send to each shareholder a comparative interim financial statement as prescribed.
150(1) Subject to subsection (2), upon the application of any interested person, the commission may, if satisfied that in the circumstances of the particular case there is adequate justification for so doing, make an order upon such terms and conditions as seem to the commission just and expedient
(a) exempting in whole or in part a corporation from any requirement of section 149;
(b) permitting the comparative interim financial statement of a corporation to be for such period other than six months as is specified in the order;
(c) enlarging or abridging the time for publication, sending or filing of any financial statement.
150(2) The commission shall not under subsection (1) grant any exemption that would have the effect of permitting a corporation that has made a distribution to the public to withhold or unreasonably delay publication of any information that is material to shareholders or potential investors, unless the commission is satisfied that in the circumstances the disclosure of that information would be unduly detrimental to the interests of the corporation.
151(1) A corporation shall keep at its registered office a copy of the financial statements of each of its subsidiary bodies corporate and of each body corporate the accounts of which are consolidated in the financial statements of the corporation.
151(2) Shareholders of a corporation and their agents and legal representatives may upon request therefor examine the statements referred to in subsection (1) during the usual business hours of the corporation, and may make extracts therefrom, free of charge.
151(3) A corporation may, within 15 days of a request to examine under subsection (2), apply to a court for an order barring the right of any person to so examine, and the court may, if it is satisfied that the examination would be detrimental to the corporation or a subsidiary body corporate, bar that right and make any further order it thinks fit.
151(4) A corporation shall give the Director and the person asking to examine under subsection (2) notice of an application under subsection (3), and the Director and that person may appear and be heard in person or by counsel.
Approval of financial statements
152(1) The directors of a corporation shall approve the financial statements referred to in subsection 149(1) and the approval shall be evidenced by the signature of one or more directors.
152(2) A corporation shall not issue, publish or circulate copies of the financial statements referred to in subsection 149(1) unless the financial statements are
(a) approved and signed in accordance with subsection (1); and
(b) accompanied by the report of the auditor of the corporation, if any.
153(1) A corporation which has made a distribution to the public shall not less than 21 days before each annual meeting of shareholders or before the signing of a resolution under clause 136(1)(b) in lieu of the annual meeting, send a copy of the documents referred to in subsection 149(1) to each shareholder, except to a shareholder who has informed the corporation in writing that he does not want a copy of those documents.
153(2) A corporation that has not made a distribution to the public shall, upon demand being made therefor by a shareholder, furnish the shareholder with a copy of the documents referred to in subsection 149(1).
153(3) A corporation that, without reasonable cause, fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
154(1) A corporation
(a) any of the securities of which are or were part of a distribution to the public, remain outstanding and are held by more than one person; or
(b) repealed, S.M. 1997, c. 26, s. 2;
shall, not less than 21 days before each annual meeting of shareholders or forthwith after the signing of a resolution under clause 136(1)(b) in lieu of the annual meeting, and in any event not later than 15 months after the last date when the last preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, send a copy of the documents referred to in subsection 149(1) to the Director.
154(2) and (3) Repealed, S.M. 1997, c. 26, s. 2.
154(4) If a corporation referred to in subsection (1)
(a) sends to its shareholders; or
(b) is required to file with or send to a public authority or a stock exchange;
interim financial statements or related documents, the corporation shall forthwith send copies thereof to the Director.
154(5) Repealed, S.M. 1997, c. 26, s. 2.
154(6) A corporation referred to in clause (1)(a) shall file with the commission a copy of every document referred to in subsections (1) and (4) at the time specified in those subsections for sending a copy to the Director, accompanied by the certificate of an officer, director or transfer agent that copies have been mailed to its shareholders.
154(7) A corporation that fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
155(1) Subject to subsection (5), a person is disqualified from being an auditor of a corporation if he is not independent of the corporation, all of its affiliates, and the directors or officers of the corporation and its affiliates.
155(2) For the purposes of this section,
(a) independence is a question of fact; and
(b) a person is deemed not to be independent if he or his business partner
(i) is a business partner, a director, an officer or an employee of the corporation or any of its affiliates, or a business partner of any director, officer or employee of the corporation or any of its affiliates, or
(ii) beneficially owns or controls, directly or indirectly, a material interest in the securities of the corporation or any of its affiliates, or
(iii) has been a receiver, receiver-manager, liquidator or trustee in bankruptcy of the corporation or any of its affiliates within two years of his proposed appointment as auditor of the corporation.
155(3) An auditor who becomes disqualified under this section shall, subject to subsection (5), resign forthwith after becoming aware of his disqualification.
155(4) An interested person may apply to a court for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant.
155(5) An interested person may apply to a court for an order exempting an auditor from disqualification under this section and the court may, if it is satisfied that an exemption would not unfairly prejudice the shareholders, make an exemption order on such terms as it thinks fit, which order may have retrospective effect.
155(6) The shareholders of a corporation may resolve to appoint as auditor, a person otherwise disqualified under subsections (1) and (2) if the resolution is consented to by all the shareholders including shareholders not otherwise entitled to vote.
155(7) A resolution under subsection (6) is valid only until the next succeeding annual meeting of shareholders.
Auditor's relationship to be disclosed in report
155(8) An auditor appointed under subsection (6) shall indicate in his report to the shareholders particulars of his relationship which would ordinarily disqualify him under subsection (1) or (2).
156(1) Subject to section 157, the shareholders of a corporation shall by ordinary resolution, at the first annual meeting of shareholders and at each succeeding annual meeting, appoint an auditor to hold office until the close of the next annual meeting.
156(2) An auditor appointed under section 99 is eligible for appointment under subsection (1).
156(3) Notwithstanding subsection (1), if an auditor is not appointed at a meeting of shareholders, the incumbent auditor continues in office until his successor is appointed.
156(4) The remuneration of an auditor may be fixed by ordinary resolution of the shareholders or, if not so fixed, may be fixed by the directors.
157(1) The shareholders of a corporation that is not required to comply with section 154, may resolve not to appoint an auditor.
157(2) A resolution under subsection (1) is valid only until the next succeeding annual meeting of shareholders.
157(3) A resolution under subsection (1) is not valid unless it is consented to by all the shareholders, including shareholders not otherwise entitled to vote.
158(1) An auditor of a corporation ceases to hold office when he
(a) dies or resigns; or
(b) is removed from office pursuant to section 159.
158(2) A resignation of an auditor becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later.
159(1) The shareholders of a corporation may by ordinary resolution at a special meeting remove from office the auditor other than an auditor appointed by a court under section 161.
159(2) A vacancy created by the removal of an auditor may be filled at the meeting at which the auditor is removed or, if not so filled, may be filled under section 160.
160(1) Subject to subsection (3), the directors shall forthwith fill any vacancy in the office of auditor.
160(2) If there is not a quorum of directors, the directors then in office shall, within 21 days after a vacancy in the office of auditor occurs, call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors, the meeting may be called by any shareholder.
160(3) The articles of a corporation may provide that a vacancy in the office of auditor shall only be filled by vote of the shareholders.
160(4) An auditor appointed to fill a vacancy holds office for the unexpired term of his predecessor.
161(1) If a corporation does not have an auditor, the court may, upon the application of a shareholder or the Director, appoint and fix the remuneration of an auditor and the auditor so appointed holds office until an auditor is appointed by the shareholders.
161(2) Subsection (1) does not apply if the shareholders have resolved under section 157 not to appoint an auditor.
162(1) The auditor of a corporation is entitled to receive notice of every meeting of shareholders and, at the expense of the corporation, to attend and be heard thereat on matters relating to his duties as auditor.
162(2) If a director or shareholder of a corporation, whether or not the shareholder is entitled to vote at the meeting, gives written notice, not less than 10 days before a meeting of shareholders, to the auditor or a former auditor of the corporation, the auditor or former auditor shall attend the meeting at the expense of the corporation and answer questions relating to his duties as auditor.
162(3) A director or shareholder who sends a notice referred to in subsection (2) shall send concurrently a copy of the notice to the corporation.
162(4) An auditor or former auditor of a corporation who fails without reasonable cause to comply with subsection (2) 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.
162(5) An auditor who
(a) resigns; or
(b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing him from office; or
(c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because his term of office has expired or is about to expire; or
(d) receives a notice or otherwise learns of a meeting of shareholders at which a resolution referred to in section 157 is to be proposed;
is entitled to submit to the corporation a written statement giving the reasons for his resignation or the reasons why he opposes any proposed action or resolution.
162(6) The corporation shall forthwith send a copy of the statement referred to in subsection (5) to every shareholder entitled to receive notice of any meeting referred to in subsection (1) and to the Director unless the statement is included in or attached to a management proxy circular required by section 144.
162(7) No person shall accept an appointment or consent to be appointed as auditor of a corporation if he is replacing an auditor who has resigned, been removed or whose term of office has expired or is about to expire until he has requested and received from that auditor a written statement of the circumstances and the reasons why, in that auditor's opinion, he is to be replaced.
162(8) Notwithstanding subsection (7), a person otherwise qualified may accept an appointment or consent to be appointed as auditor of a corporation if, within 15 days after making the request referred to in that subsection, he does not receive a reply.
162(9) Unless subsection (8) applies, the appointment as auditor of a corporation of a person who has not complied with subsection (7) is void.
163(1) An auditor of a corporation shall make the examination that is in his opinion necessary to enable him to report in the prescribed manner on the financial statements required by this Act to be placed before the shareholders, except such financial statements or part thereof as relate to the period referred to in sub-clause 149(1)(a)(ii).
163(2) Notwithstanding section 164, an auditor of a corporation may reasonably rely upon the report of an auditor of a body corporate or an unincorporated business the accounts of which are included in whole or in part in the financial statements of the corporation.
163(3) For the purpose of subsection (2), reasonableness is a question of fact.
163(4) Subsection (2) applies whether or not the financial statements of the holding corporation reported upon by the auditor are in consolidated form.
164(1) Upon the demand of an auditor of a corporation, the present or former directors, officers, employees or agents of the corporation shall furnish such
(a) information and explanations; and
(b) access to records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries;
as are, in the opinion of the auditor, necessary to enable him to make the examination and report required under section 163 and that the directors, officers, employees or agents are reasonably able to furnish.
164(2) Upon the demand of the auditor of a corporation, the directors of the corporation shall
(a) obtain from the present or former directors, officers, employees and agents of any subsidiary of the corporation the information and explanations that the present or former directors, officers, employees and agents are reasonably able to furnish and that are, in the opinion of the auditor, necessary to enable him to make the examination and report required under section 163; and
(b) furnish the information and explanations obtained under clause (a) to the auditor.
165(1) Subject to subsection (2), a corporation that has made a distribution to the public shall, and any other corporation may, have an audit committee composed of not less than three directors of the corporation, a majority of whom are not officers or employees of the corporation or any of its affiliates.
165(2) A corporation may apply to the commission for an order authorizing the corporation to dispense with an audit committee, and the commission may, if it is satisfied that the shareholders will not be prejudiced by the order, permit the corporation to dispense with an audit committee on such reasonable conditions as it thinks fit.
165(3) An audit committee shall review the financial statements of the corporation before they are approved under section 152.
165(4) The auditor of a corporation is entitled to receive notice of every meeting of the audit committee and, at the expense of the corporation, to attend and be heard thereat; and, if so requested by a member of the audit committee, shall attend every meeting of the committee held during the term of office of the auditor.
165(5) The auditor of a corporation or a member of the audit committee may call a meeting of the committee.
165(6) A director or an officer of a corporation shall forthwith notify the audit committee and the auditor of any error or misstatement of which he becomes aware in a financial statement that the auditor or a former auditor has reported upon.
165(7) If the auditor or former auditor of a corporation is notified or becomes aware of an error or misstatement in a financial statement upon which he has reported, and if in his opinion the error or misstatement is material, he shall inform each director accordingly.
165(8) When under subsection (7) the auditor or former auditor informs the directors or when the directors otherwise have knowledge of an error or misstatement in a financial statement, the directors shall
(a) prepare and issue revised financial statements; or
(b) otherwise inform the shareholders and, if the corporation is one that is required to comply with section 154, it shall inform the Director of the error or misstatement in the same manner as it informs the shareholders.
165(9) Every director or officer of a corporation who knowingly fails to comply with subsection (6) or (8) 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.
Qualified privilege (defamation)
166 Any oral or written statement or report made under this Act by the auditor or former auditor of a corporation has qualified privilege.
PART XIV
FUNDAMENTAL CHANGES
167(1) Subject to sections 170 and 171, the articles of a corporation may by special resolution be amended to
(a) change its name; or
(b) add, change or remove any restriction upon the business or businesses that the corporation may carry on; or
(c) change any maximum number of shares that the corporation is authorized to issue and change, if desired, the maximum consideration for which the shares may be issued; or
(d) create new classes of shares; or
(e) change the designation of all or any of its shares, and add, change or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any of its shares, whether issued or unissued; or
(f) reduce or increase its stated capital which, for the purposes of the amendment, is deemed to be set out in the articles; or
(g) change the shares of any class or series, whether issued or unissued, into a different number of shares of the same class or series or into the same or a different number of shares of other classes or series; or
(h) divide a class of shares, whether issued or unissued, into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof; or
(i) authorize the directors to divide any class of unissued shares into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof; or
(j) authorize the directors to change the rights, privileges, restrictions and conditions attached to unissued shares of any series; or
(k) revoke, diminish or enlarge any authority conferred under clauses (i) and (j); or
(l) add, change or remove restrictions on the issue, transfer or ownership of shares; or
(m) add, change or remove any other provision that is permitted by this Act to be set out in the articles.
Corporation with or without share capital
167(2) The articles of a corporation may, by resolution, be amended
(a) to convert a corporation with share capital into a corporation without share capital; or
(b) to convert a corporation without share capital into a corporation with share capital; or
(c) to vary or remove any provision contained in the articles of a corporation without share capital, which states that upon dissolution its remaining property may be distributed among all the members or among the members of a class or classes of members, to one which states that upon dissolution the remaining property shall be distributed to an organization the undertaking of which is charitable or of a beneficial nature to the community.
167(3) The resolution required under subsection (2) shall be signed by all the shareholders or members of the corporation, or shall be passed by the votes of 95% of the issued shares or membership of the corporation.
167(4) The articles of amendment shall contain the formula, terms and conditions upon which the shareholders become members or the members become shareholders.
167(5) Notwithstanding subsection (1), the articles of a corporation may by resolution of the directors or by ordinary resolution of the shareholders be amended
(a) to correct any clerical error; or
(b) to change the name of the corporation where it has a designating number as a name.
Article of amendment to be filed
167(6) Articles of amendment shall be filed with the Director within six months of the date of the resolution of the shareholders authorizing the amendment, failing which the Director shall refuse to file the articles.
167(7) A corporation incorporated by special Act shall not under this section amend its articles, except to change its name.
Revocation of amending resolution
167(8) The directors of a corporation may, if authorized by the shareholders in any resolution effecting an amendment under this section, revoke the resolution before it is acted upon without further approval of the shareholders.
167(9) Notwithstanding subsection (1), a corporation may by resolution of the directors change or delete the maximum consideration for which each share or each class of shares or all the shares may be issued, but the resolution is not effective until articles are filed with the Director.
R.S.M. 1987 Supp., c. 10, s. 10; S.M. 1988-89, c. 13, s. 6; S.M. 1989-90, c. 90, s. 5.
Constraints on share transfers
168(1) Subject to sections 170 and 171, a corporation any of the issued shares of which are or were part of a distribution to the public may by special resolution amend its articles in accordance with the regulations to constrain the issue or transfer of its shares
(a) to persons who are not residents of Canada; or
(b) to enable the corporation or any of its affiliates to qualify under any law of Canada or of any province of Canada
(i) to obtain a licence to carry on any business,
(ii) to become a publisher of a Canadian newspaper or periodical, or
(iii) to acquire shares of a financial intermediary as defined in the regulations.
168(2) A corporation referred to in subsection (1) may by special resolution amend its articles to remove any constraint on the issue or transfer of its shares.
168(3) The directors of a corporation may, if authorized by the shareholders in the special resolution effecting an amendment under subsection (1), revoke the resolution before it is acted upon without further approval of the shareholders.
168(4) Subject to subsection 254(3), the Lieutenant Governor in Council may make regulations with respect to a corporation that constrains the issue or transfer of its shares prescribing
(a) the disclosure required of the constraints in documents issued or published by the corporation;
(b) the duties and powers of the directors to refuse to issue or register transfers of shares in accordance with the articles of the corporation;
(c) the limitations on voting rights of any shares held contrary to the articles of the corporation;
(d) the powers of the directors to require disclosure of beneficial ownership of shares of the corporation and the right of the corporation and its directors, employees and agents to rely on that disclosure and the effects of that reliance; and
(e) the rights of any person owning shares of the corporation at the time of an amendment to its articles constraining share issues or transfers.
168(5) An issue or a transfer of a share or an act of a corporation is valid notwithstanding any failure to comply with this section or the regulations.
169(1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 131, make a proposal to amend the articles.
169(2) Notice of a meeting of shareholders at which a proposal to amend the articles is to be considered shall set out the proposed amendment and, where applicable, shall state that a dissenting shareholder is entitled to be paid the fair value of his shares in accordance with section 184, but failure to make that statement does not invalidate the amendment.
170(1) The holders of shares of a class or, subject to subsection (2), of a series are, unless the articles otherwise provide in the case of an amendment referred to in clauses (a), (b) and (e), entitled to vote separately as a class or series upon a proposal to amend the articles to
(a) increase or decrease any maximum number of authorized shares of the class, or increase any maximum number of authorized shares of any other class having rights or privileges equal or superior to the shares of that class; or
(b) effect an exchange, reclassification or cancellation of all or part of the shares of the class; or
(c) add, change or remove the rights, privileges, restrictions or conditions attached to the shares of the class and, without limiting the generality of the foregoing,
(i) remove or change prejudicially any rights to accrued dividends or rights to cumulative dividends, or
(ii) add, remove or change prejudicially any redemption rights, or
(iii) reduce or remove any dividend preference or liquidation preference, or
(iv) add, remove or change prejudicially any conversion privileges, options, voting, transfer or pre-emptive rights, or rights to acquire securities of a corporation, or sinking fund provisions; or
(d) increase the rights or privileges of any other class of shares having rights or privileges equal or superior to the shares of that class; or
(e) create a new class of shares equal or superior to the shares of that class; or
(f) make any class of shares having rights or privileges inferior to the shares of that class equal or superior to the shares of that class; or
(g) effect an exchange or create a right of exchange of all or part of the shares of another class into the shares of that class; or
(h) constrain the issue or transfer of the shares of the class or extend or remove the constraint.
170(2) The holders of a series of shares of a class are entitled to vote separately as a series under subsection (1) only if the series is affected by an amendment in a manner different from other shares of the same class.
170(3) Subsection (1) applies whether or not shares of a class or series otherwise carry the right to vote.
170(4) A proposed amendment to the articles referred to in subsection (1) is adopted when the holders of the shares of each class or series entitled to vote separately thereon as a class or series have approved the amendment by a special resolution.
171(1) Subject to any revocation under subsection 167(8) or 168(3), after an amendment has been adopted under section 167, 168 or 170, the corporation shall send the Director articles of amendment in the form the Director requires.
171(2) If an amendment effects or requires a reduction of stated capital, subsections 36(3) and 36(4) apply.
S.M. 1988-89, c. 11, s. 5; S.M. 2006, c. 10, s. 24.
172 Upon receipt of articles of amendment, the Director shall issue a certificate of amendment in accordance with section 255.
173(1) An amendment becomes effective on the date shown in the certificate of amendment, and the articles are amended accordingly.
173(2) No amendment to the articles affects an existing cause of action or claim or liability to prosecution in favour of or against the corporation or its directors or officers, or any civil, criminal or administrative action or proceeding to which a corporation or its directors or officers is a party.
174(1) The directors may at any time, and shall when reasonably so directed by the Director, restate the articles of the corporation.
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.
174(3) Upon receipt of restated articles of incorporation, the Director shall issue a restated certificate of incorporation in accordance with section 255.
174(4) Restated articles of incorporation are effective on the date shown in the restated certificate of incorporation and supersede the original articles of incorporation and any amendments thereto.
R.S.M. 1987 Supp., c. 10, s. 11 and 12; S.M. 2006, c. 10, s. 25.
Reissue of articles in English or in French
174.1(1) Where articles have been filed in English or French under this Act, or any Act for which this Act has been substituted, and the corporation desires to obtain its articles in the other of those languages, the corporation may request the issuance of the articles in that other language by providing the Director with
(a) a translation in that other language of the articles verified in a manner satisfactory to the Director; and
(b) such other documents or information as the Director may require.
174.1(2) The issuance of the articles under subsection (1) may be authorized by a resolution of the directors or by ordinary resolution of the shareholders.
174.1(3) The translation of the articles shall correctly set out, without substantive change, the provisions of the original articles.
174.1(4) Upon receipt of the documents referred to in subsection (1), the Director shall issue the articles in the language requested.
174.1(5) Articles issued under this section
(a) are deemed to have been issued on the day the original articles were issued; and
(b) have equal force with the original articles.
174.1(6) The issuance of articles under this section does not affect the rights or obligations of the corporation.
174.1(7) If, in the articles issued under this section, the name of the corporation differs from the name obtained by it in the original articles, the Director shall publish a notice of the change in the manner set out in the regulations.
R.S.M. 1987 Supp., c. 10, s. 13; S.M. 2000, c. 41, s. 10.
175(1) Two or more corporations, including holding and subsidiary corporations, may amalgamate and continue as one corporation.
Special Act corporations excepted
175(2) A corporation incorporated by special Act, other than a corporation to which Part XXIV applies, may not under the provisions of this Act amalgamate with any other corporation.
176(1) Each corporation proposing to amalgamate shall enter into an agreement setting out the terms and means of effecting the amalgamation and, in particular, setting out
(a) the provisions that are required to be included in articles of incorporation under section 6;
(b) the name and address of each proposed director of the amalgamated corporation;
(c) the manner in which the shares of each amalgamating corporation are to be converted into shares or other securities of the amalgamated corporation;
(d) if any shares of an amalgamating corporation are not to be converted into securities of the amalgamated corporation, the amount of money or securities of any body corporate that the holders of those shares are to receive in addition to or instead of securities of the amalgamated corporation;
(e) the manner of payment of money instead of the issue of fractional shares of the amalgamated corporation or of any other body corporate the securities of which are to be received in the amalgamation;
(f) whether the by-laws of the amalgamated corporation are to be those of one of the amalgamating corporations and, if not, a copy of the proposed by-laws; and
(g) details of any arrangements necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated corporation.
176(2) If shares of one of the amalgamating corporations are held by or on behalf of another of the amalgamating corporations, the amalgamation agreement shall provide for the cancellation of those shares when the amalgamation becomes effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of those shares into shares of the amalgamated corporation.
177(1) The directors of each amalgamating corporation shall submit the amalgamation agreement for approval to a meeting of the holders of shares of the amalgamating corporation of which they are directors and, subject to subsection (4), to the holders of each class or series of those shares.
177(2) A notice of a meeting of shareholders complying with sections 129 shall be sent in accordance with that section to each shareholder of each amalgamating corporation, and shall
(a) include or be accompanied by a copy or summary of the amalgamation agreement; and
(b) state that a dissenting shareholder is entitled to be paid the fair value of his shares in accordance with section 184, but failure to make that statement does not invalidate an amalgamation.
177(3) Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation whether or not it otherwise carries the right to vote.
177(4) The holders of shares of a class or series of shares of an amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation if the amalgamation agreement contains provision that, if contained in a proposed amendment to the articles, would entitle those holders to vote as a class or series under section 170.
177(5) An amalgamation agreement is adopted when the shareholders of each amalgamating corporation have approved of the amalgamation by special resolutions of each class or series of the shareholders entitled to vote thereon.
177(6) An amalgamation agreement may provide that at any time before the issue of a certificate of amalgamation the agreement may be terminated by the directors of an amalgamating corporation, notwithstanding approval of the agreement by the shareholders of all or any of the amalgamating corporations.
Vertical short-form amalgamation
178(1) A holding corporation and one or more of its wholly-owned subsidiary corporations may amalgamate and continue as one corporation without complying with sections 176 and 177 if
(a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and
(b) the resolutions required under clause (a) provide that
(i) the shares of each amalgamating subsidiary corporation shall be cancelled without any repayment of capital in respect thereof,
(ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of incorporation of the amalgamating holding corporation, and
(iii) no securities shall be issued by the amalgamated corporation in connection with the amalgamation.
Horizontal short-form amalgamation
178(2) Two or more wholly-owned subsidiary corporations of the same holding body corporate may amalgamate and continue as one corporation without complying with sections 176 and 177 if
(a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and
(b) the resolutions required under clause (a) provide that
(i) the shares of all but one of the amalgamating subsidiary corporations shall be cancelled without any repayment of capital in respect thereof,
(ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of incorporation of the amalgamating subsidiary corporation whose shares are not cancelled, and
(iii) the stated capital of the amalgamating subsidiary corporations whose shares are cancelled shall be added to the stated capital of the amalgamating subsidiary corporation whose shares are not cancelled.
179(1) Subject to subsection 177(6), after an amalgamation has been adopted under section 177 or approved under section 178, the amalgamating corporations shall send the Director articles of amalgamation that comply with section 6 and are in the form the Director requires.
179(2) The articles of amalgamation shall have attached thereto a statutory declaration of a director or an officer of each amalgamating corporation that establishes to the satisfaction of the Director that
(a) there are reasonable grounds for believing that
(i) each amalgamating corporation is and the amalgamated corporation will be able to pay its liabilities as they become due, and
(ii) the realizable value of the amalgamated corporation's assets will not be less than the aggregate of its liabilities and stated capital of all classes; and
(b) there are reasonable grounds for believing that
(i) no creditor will be prejudiced by the amalgamation, or
(ii) adequate notice has been given to all known creditors of the amalgamating corporations and no creditor objects to the amalgamation otherwise than on grounds that are frivolous or vexatious.
179(3) For the purposes of subsection (2), adequate notice is given if
(a) a notice in writing is sent to each known creditor having a claim against the corporation that exceeds $1,000.;
(b) a notice is published once in a newspaper published or distributed in the place where the corporation has its registered office and reasonable notice is given in each province in Canada where the corporation carries on business; and
(c) each notice under clauses (a) and (b) states that the corporation intends to amalgamate with one or more specified corporations in accordance with this Act unless a creditor of the corporation objects to the amalgamation within 30 days from the date of the notice.
179(4) Upon receipt of articles of amalgamation, the Director shall issue a certificate of amalgamation in accordance with section 255.
180 On the date shown in a certificate of amalgamation,
(a) the amalgamation of the amalgamating corporations and their continuance as one corporation become effective;
(b) the property of each amalgamating corporation continues to be the property of the amalgamated corporation;
(c) the amalgamated corporation continues to be liable for the obligations of each amalgamating corporation;
(d) an existing cause of action, claim or liability to prosecution is unaffected;
(e) a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may continue to be prosecuted by or against the amalgamated corporation;
(f) a conviction against, or ruling, order or judgment in favour of or against an amalgamating corporation may be enforced by or against the amalgamated corporation; and
(g) the articles of amalgamation are deemed to be the articles of incorporation of the amalgamated corporation and the certificate of amalgamation is deemed to be the certificate of incorporation of the amalgamated corporation.
181(1) A body corporate incorporated otherwise than under an Act of the Legislature may, if so authorized by the laws of the jurisdiction where it is incorporated, and upon compliance with the provisions of this Act, apply to the Director for a certificate of continuance.
181(2) A corporation incorporated by a special Act may, with the approval of the Director, apply for a certificate of continuance under this Act unless the special Act provides that The Corporations Act does not apply to the corporation.
Amendments in articles of continuance
181(3) A body corporate that applies for continuance under subsection (1) or (2) may, without so stating in its articles of continuance, effect by those articles any amendments to its articles if the amendment is an amendment a corporation incorporated under this Act may make to its articles.
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.
181(5) Upon the receipt of articles of continuance, the Director may issue a certificate of continuance in accordance with section 255.
181(6) The Director may refuse to issue a certificate of continuance and in that case he shall advise the body corporate of his refusal, and the body corporate may appeal the Director's decision to the Lieutenant Governor in Council, whose decision is final.
181(7) On the date shown in the certificate of continuance,
(a) the body corporate becomes a corporation to which this Act applies as if it had been incorporated under this Act;
(b) the articles of continuance are deemed to be the articles of incorporation of the continued corporation; and
(c) the certificate of continuance is deemed to be the certificate of incorporation of the continued corporation.
181(8) The Director shall forthwith send a copy of the certificate of continuance to the appropriate official or public body in the jurisdiction in which continuance under this Act was authorized.
181(9) When a body corporate is continued as a corporation under this Act,
(a) the property of the body corporate continues to be the property of the corporation;
(b) the corporation continues to be liable for the obligations of the body corporate;
(c) an existing cause of action, claim or liability to prosecution is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may continue to be prosecuted by or against the corporation;
(e) a conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the corporation.
181(10) A share of a body corporate issued before the body corporate was continued under this Act is deemed to have been issued in compliance with this Act and with the provisions of the articles of continuance irrespective of whether the share is fully paid or irrespective of any designation, rights, privileges, restrictions or conditions set out on or referred to in the certificate representing the share; and continuance under this section does not deprive a holder of any right or privilege that he claims under, or relieve him of any liability in respect of, an issued share.
Exception in case of convertible shares
181(11) Where a corporation continued under this Act had, before it was so continued, issued a share certificate in registered form that is convertible to bearer form, the corporation may, if a holder of the share certificate exercises the conversion privilege attached thereto, issue a share certificate in bearer form for the same number of shares to the holder.
181(12) For the purposes of subsections (9) and (10), "share" includes an instrument referred to in subsection 29(1), a share warrant or a like instrument.
S.M. 2006, c. 10, s. 27; S.M. 2008, c. 14, s. 135.
182(1) Subject to subsections (2), (3) and (11), a corporation may, if it is authorized by the shareholders in accordance with this section, and if it establishes to the satisfaction of the Director that its proposed continuance in another jurisdiction will not adversely affect creditors or shareholders of the corporation, apply to the appropriate official or public body of another jurisdiction requesting that the corporation be continued as if it had been incorporated under the laws of that other jurisdiction.
182(2) The approval of the Director to a continuance in another jurisdiction expires 90 days after the date of the approval unless, within the 90 day period, the corporation is continued under the laws of the other jurisdiction.
182(3) A corporation to which Parts XXI, XXII, XXIII, and XXIV apply and that is incorporated under this Act or under any Act for which this Act is substituted shall not apply for continuance in another jurisdiction without the prior consent of the minister.
182(4) A notice of a meeting of shareholders complying with section 129 shall be sent in accordance with that section to each shareholder and shall state that a dissenting shareholder is entitled to be paid the fair value of his shares in accordance with section 184, but failure to make that statement does not invalidate a discontinuance under this Act.
182(5) Each share of the corporation carries the right to vote in respect of a continuance whether or not it otherwise carries the right to vote.
182(6) An application for continuance becomes authorized when the shareholders voting thereon have approved of the continuance by a special resolution.
182(7) The directors of a corporation may, if authorized by the shareholders at the time of approving an application for continuance under this section, abandon the application without further approval of the shareholders.
182(8) Upon receipt of notice satisfactory to him that the corporation has been continued under the laws of another jurisdiction, the Director shall issue a certificate of discontinuance in accordance with section 255.
182(9) For the purposes of section 255, a notice referred to in subsection (8) is deemed to be articles in the form the Director requires.
182(10) Subject to Part XVI, this Act ceases to apply to the corporation on the date that the corporation was continued under the laws of the other jurisdiction.
182(11) A corporation shall not be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that
(a) the property of the corporation continues to be the property of the body corporate;
(b) the body corporate continues to be liable for the obligations of the corporation;
(c) an existing cause of action, claim or liability to prosecution is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the corporation may be continued to be prosecuted by or against the body corporate; and
(e) a conviction against, or ruling, order or judgment in favour of or against the corporation may be enforced by or against the body corporate.
Continued corporation carrying on business in Manitoba
182(12) A corporation continued as a body corporate under the laws of another jurisdiction that has not ceased to carry on business in Manitoba shall comply with the provisions of subsection 192(3).
Special Act corporation prohibited
182(13) A corporation incorporated by a special Act of the Legislature, other than a corporation to which Part XXIV applies, shall not under this section apply for continuance in another jurisdiction.
183(1) Unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the articles of a corporation are deemed to state that the directors of a corporation may, without authorization of the shareholders,
(a) borrow money upon the credit of the corporation;
(b) issue, reissue, sell or pledge debt obligations of the corporation;
(c) give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation.
Delegation of borrowing powers
183(2) Notwithstanding subsection 110(3) and clause 116(a), unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors may, by resolution, delegate the powers referred to in subsection (1) to a director, a committee of directors or an officer.
Extraordinary sale, lease or exchange
183(3) A sale, lease or exchange of all or substantially all the property of a corporation other than in the ordinary course of business of the corporation requires the approval of the shareholders in accordance with subsections (4) to (8).
183(4) A notice of a meeting of shareholders complying with section 129 shall be sent in accordance with that section to each shareholder and shall
(a) include or be accompanied by a copy or summary of the agreement of sale, lease or exchange; and
(b) state that a dissenting shareholder is entitled to be paid the fair value of his shares in accordance with section 184, but failure to make that statement does not invalidate a sale, lease or exchange referred to in subsection (3).
183(5) At the meeting referred to in subsection (4) the shareholders may authorize the sale, lease or exchange and may fix or authorize the directors to fix any of the terms and conditions thereof.
183(6) Each share of the corporation carries the right to vote in respect of a sale, lease or exchange referred to in subsection (3) whether or not it otherwise carries the right to vote.
183(7) A sale, lease or exchange referred to in subsection (3) is adopted when the holders of each class or series entitled to vote thereon have approved of the sale, lease or exchange by a special resolution.
183(8) The directors of a corporation may, if authorized by the shareholders approving a proposed sale, lease or exchange, and subject to the rights of third parties, abandon the sale, lease or exchange without further approval of the shareholders.
S.M. 1988-89, c. 11, s. 5; S.M. 2006, c. 10, s. 29.
184(1) Subject to sections 185 and 234, and any unanimous shareholder agreement, a holder of shares of any class of a corporation may dissent if the corporation is subject to an order under clause 185(10)(d) that affects the holder or if the corporation resolves
(a) to amend its articles under section 167 or 168 to add, change or remove any provisions restricting or constraining the issue or transfer of shares of that class; or
(b) to amend its articles under section 167 to add, change or remove any restriction upon the business or businesses that the corporation may carry on; or
(c) to amalgamate with another corporation, otherwise than under section 178; or
(d) to be continued under the laws of another jurisdiction under section 182; or
(e) to sell, lease or exchange all or substantially all its property under subsection 183(3); or
(f) to amend its articles under subsection 167(2) to convert the corporation from a corporation with share capital into a corporation without share capital; or
(g) to amend its articles under subsection 167(2) to convert the corporation from a corporation without share capital into a corporation with share capital, where the articles contain a provision that upon dissolution the remaining property is to be distributed among the members as provided in section 277; or
(h) if it is a corporation without share capital, to amend its articles under section 167 to prevent a distribution to the members on dissolution.
184(2) A holder of shares of any class or series of shares entitled to vote under section 170 may dissent if the corporation resolves to amend its articles in a manner described in that section.
184(3) In addition to any other right he may have, but subject to subsection (26), a shareholder who complies with this section is entitled, when the action approved by the resolution from which he dissents or an order made under subsection 185(10) becomes effective, to be paid by the corporation the fair value of the shares held by him in respect to which he dissents, determined as of the close of business on the day before the resolution was adopted or the order was made.
184(4) A dissenting shareholder may only claim under this section with respect to all the shares of a class held by him on behalf of any one beneficial owner and registered in the name of the dissenting shareholder.
184(5) A dissenting shareholder shall send to the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution, unless the corporation did not give notice to the shareholder of the purpose of the meeting or of his right to dissent.
184(6) The corporation shall, within 10 days after the shareholders adopt the resolution, send to each shareholder who has filed the objection referred to in subsection (5) notice that the resolution has been adopted, but the notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn his objection.
184(7) A dissenting shareholder shall, within 20 days after he receives a notice under subsection (6) or, if he does not receive the notice, within 20 days after he learns that the resolution has been adopted, send to the corporation a written notice containing
(a) his name and address;
(b) the number and class of shares in respect of which he dissents; and
(c) a demand for payment of the fair value of his shares.
184(8) A dissenting shareholder shall, within 30 days after sending a notice under subsection (7), send the certificates representing the shares in respect of which he dissents to the corporation or its transfer agent.
184(9) A dissenting shareholder who fails to comply with subsection (8) has no right to make a claim under this section.
184(10) A corporation or its transfer agent shall endorse on any share certificate received under subsection (8) a notice that the holder is a dissenting shareholder under this section and shall forthwith return the share certificates to the dissenting shareholder.
184(11) On sending a notice under subsection (7), a dissenting shareholder ceases to have any rights as a shareholder other than the right to be paid the fair value of his shares as determined under this section except where
(a) the dissenting shareholder withdraws his notice before the corporation makes an offer under subsection (12);
(b) the corporation fails to make an offer in accordance with subsection (12) and the dissenting shareholder withdraws his notice; or
(c) the directors revoke a resolution to amend the articles under subsection 167(8) or 168(3), terminate an amalgamation agreement under subsection 177(6) or an application for continuance under subsection 182(6), or abandon a sale, lease or exchange under subsection 183(8);
and in that case his rights as a shareholder are reinstated as of the date he sent the notice referred to in subsection (7).
184(12) A corporation shall, not later than seven days after the later of the day on which the action approved by the resolution is effective or the day the corporation received the notice referred to in subsection (7), send to each dissenting shareholder who has sent the notice
(a) a written offer to pay for his shares in an amount considered by the directors of the corporation to be the fair value thereof, accompanied by a statement showing how the fair value was determined; or
(b) if subsection (26) applies, a notification that it is unable lawfully to pay dissenting shareholders for their shares.
184(13) Every offer made under subsection (12) for shares of the same class or series shall be on the same terms.
184(14) Subject to subsection (26), a corporation shall pay for the shares of a dissenting shareholder within 10 days after an offer made under subsection (12) has been accepted, but that offer lapses if the corporation does not receive an acceptance thereof within 30 days after the offer has been made.
Corporation application to court
184(15) Where a corporation fails to make an offer under subsection (12), or if a dissenting shareholder fails to accept an offer, the corporation may, within 50 days after the action approved by the resolution is effective or within such further period as a court may allow, apply to a court to fix a fair value for the shares of any dissenting shareholder.
Shareholder application to court
184(16) If a corporation fails to apply to a court under subsection (15), a dissenting shareholder may apply to a court for the same purpose within a further period of 20 days or within such further period as a court may allow.
184(17) An application under subsection (15) or (16) shall be made to a court having jurisdiction in the place where the corporation has its registered office or in the province where the dissenting shareholder resides if the corporation carries on business in that province.
184(18) A dissenting shareholder is not required to give security for costs in an application made under subsection (15) or (16).
184(19) Upon an application under subsection (15) or (16),
(a) all dissenting shareholders whose shares have not been purchased by the corporation shall be joined as parties and are bound by the decision of the court; and
(b) the corporation shall notify each affected dissenting shareholder of the date, place and consequences of the application and of his right to appear and be heard in person or by counsel.
184(20) Upon an application to a court under subsection (15) or (16), the court may determine whether any other person is a dissenting shareholder who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting shareholders.
184(21) A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of the dissenting shareholders.
184(22) The final order of a court shall be rendered against the corporation in favour of each dissenting shareholder and for the amount of his shares as fixed by the court.
184(23) A court may in its discretion allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective until the date of payment.
Notice that subsection (26) applies
184(24) If subsection (26) applies, the corporation shall, within 10 days after the pronouncement of an order under subsection (22), notify each dissenting shareholder that it is unable lawfully to pay dissenting shareholders for their shares.
Effect where subsection (26) applies
184(25) If subsection (26) applies, a dissenting shareholder, by written notice delivered to the corporation within 30 days after receiving a notice under subsection (24) may
(a) withdraw his notice of dissent, in which case the corporation is deemed to consent to the withdrawal and the shareholder is reinstated to his full rights as a shareholder; or
(b) retain a status as a claimant against the corporation, to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the corporation but in priority to its shareholders.
184(26) A corporation shall not make a payment to a dissenting shareholder under this section if there are reasonable grounds for believing that
(a) the corporation is or would after the payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation's assets would thereby be less than the aggregate of its liabilities.
S.M. 1988-89, c. 11, s. 5.
185(1) In this section,
"arrangement" includes
(a) an amendment to the articles of a corporation;
(b) an amalgamation of two or more corporations;
(c) a division of the business carried on by a corporation;
(d) a transfer of all or substantially all the property of a corporation to another body corporate in exchange for property, money or securities of the body corporate;
(e) an exchange of securities of a corporation held by security holders for property, money or other securities of the corporation or property, money or securities of another body corporate that is not a take-over bid to which The Securities Act applies;
(f) a liquidation and dissolution of a corporation; and
(g) any combination of the foregoing; (« arrangement »)
"reorganization" means a court order made under
(a) section 234; or
(b) the Bankruptcy Act (Canada), approving a proposal; or
(c) any other Act of the Legislature that affects the rights among the corporation, its shareholders and creditors. (« réorganisation »)
185(2) If a corporation is subject to an order referred to in subsection (1), its articles may be amended by the order to effect any change that might lawfully be made by an amendment under section 167.
185(3) If a court makes an order referred to in subsection (1), the court may also
(a) authorize the issue of debt obligations of the corporation, whether or not convertible into shares of any class or having attached any rights or options to acquire shares of any class, and fix the terms thereof; and
(b) appoint directors in place of or in addition to all or any of the directors then in office.
185(4) After an order referred to in subsection (1) has been made, the corporation shall send the Director articles of reorganization in the form the Director requires.
185(5) Upon the receipt of articles of reorganization, the Director shall issue a certificate of amendment in accordance with section 255.
185(6) A reorganization becomes effective on the date shown in the certificate of amendment and the articles of incorporation are amended accordingly.
185(7) A shareholder is not entitled to dissent under section 184 if an amendment to the articles of incorporation is effected under this section.
185(8) For the purposes of this section, a corporation is insolvent
(a) where it is unable to pay its liabilities as they become due; or
(b) where the realizable value of the assets of the corporation are less than the aggregate of its liabilities and stated capital of all classes.
Application to court for approval of arrangement
185(9) Where it is not practicable for a corporation that is not insolvent to effect a fundamental change in the nature of an arrangement under any other provision of this Act, the corporation may apply to a court for an order approving an arrangement proposed by the corporation.
185(10) In connection with an application under subsection (9), the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,
(a) an order determining the notice to be given to an interested person or dispensing with notice to any person other than the Director;
(b) an order appointing counsel, at the expense of the corporation, to represent the interests of the shareholders;
(c) an order requiring a corporation to call, hold and conduct a meeting of holders of securities or options or rights to acquire securities in such manner as the court directs;
(d) an order permitting a shareholder to dissent under section 184;
(e) an order approving an arrangement as proposed by the corporation or as amended in any manner the court may direct.
185(11) An applicant under subsection (9) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel.
185(12) After an order referred to in clause (10)(e) has been made, the corporation shall send the Director articles of arrangement, in the form the Director requires, together with the documents required by sections 19 and 108, if applicable.
185(13) Upon receipt of articles of arrangement, the Director shall issue a certificate of amendment in accordance with section 255.
185(14) An arrangement becomes effective on the date shown in the certificate of amendment.
PART XV
POWER OF ATTORNEY
186(1) Every body corporate to which this Act applies
(a) that has no director or officer residing in the province; or
(b) that has its registered office outside of the province;
shall, by a duly executed power of attorney in the form the Director requires, appoint a person residing in the province to act as its attorney for the purpose of accepting service of any process or being served therewith in any suit or proceeding against the body corporate within the province, and of receiving all lawful notices, and of declaring that service of process in respect of any suit or proceeding and of any lawful notice on the attorney are legal and binding on the body corporate, and the power of attorney shall be filed with the Director.
Invalidity of power of attorney
186(2) If the