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S.M. 2004, c. 45
Bill 300, 2nd Session, 38th Legislature
The Winnipeg Foundation Act
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(Assented to June 10, 2004)
WHEREAS The Winnipeg Foundation was incorporated by An Act to incorporate the Winnipeg Foundation, S.M. 1921, c. 165, and was continued by An Act respecting "The Winnipeg Foundation", S.M. 1943, c. 52, The Winnipeg Foundation Act, S.M. 1980, c. 98, and The Winnipeg Foundation Act, R.S.M. 1990, c. 222;
AND WHEREAS The Winnipeg Foundation has presented a petition requesting that The Winnipeg Foundation Act be replaced with the following, and it is appropriate to grant the petition;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"board" means the board of directors of the Foundation. (« conseil »)
"director" means a member of the board. (« administrateur »)
"donation" includes a gift, grant, legacy, bequest, devise, testamentary disposition, deed of trust or other form of contribution. (« donation »)
"Foundation" means The Winnipeg Foundation continued by section 2. (« Fondation »)
"funds", in relation to the Foundation, means funds established or managed by it for one or more charitable purposes referred to in section 4. (« fonds »)
"property" includes both personal and real property. (« biens »)
"registered charity" means a registered charity under the Income Tax Act (Canada). (« organisme de bienfaisance enregistré »)
The Winnipeg Foundation, consisting of its directors from time to time, is continued as a corporation without share capital.
The Foundation is to maintain its head office in the City of Winnipeg.
The objects of the Foundation are to receive donations and to establish and manage one or more funds to be used for the following charitable purposes:
(a) providing assistance for needy persons, and in particular for the sick, elderly and impoverished;
(b) increasing human knowledge and alleviating human suffering through educational advancement and scientific or medical research;
(c) promoting the conservation of human, natural and heritage resources;
(d) promoting a philanthropic climate within the community;
(e) any other charitable, educational or cultural purposes that, in the opinion of the board, are desirable.
The inhabitants of Manitoba, and mainly those of the City of Winnipeg, are to be the primary focus of the Foundation.
BOARD OF DIRECTORS
The board is to manage and administer the affairs of the Foundation.
The board is to consist of a minimum of five and a maximum of twelve residents of Manitoba, one of whom must be the mayor of The City of Winnipeg. The actual number is to be determined from time to time by those appointing the directors under section 6.
The directors are to be appointed on the written resolution of a majority of the persons who hold the following offices:
(a) the Lieutenant Governor;
(b) the Chief Justice of Manitoba;
(c) the Chief Justice of the Court of Queen's Bench;
(d) the mayor of The City of Winnipeg; and
(e) the Registrar-General.
A resolution appointing a director must specify his or her term of office. The initial term must be a minimum of two and a maximum of five years.
A person ceases to be a director when he or she resigns, dies, ceases to be a resident of Manitoba, or is removed from office by a resolution of two-thirds of the directors.
A director is eligible to be re-appointed.
A person who holds an office referred to in clauses (1)(a) to (e) may be appointed as a director.
The directors are not entitled to remuneration for serving as directors but are entitled to be reimbursed for their expenses as approved by the board.
The board may authorize the appointment of the officers and employees of the Foundation and provide for the determination of their remuneration.
The board must establish for the Foundation's funds an investment policy that is consistent with the duty of care that a trustee has in administering the property of others. Subject to section 16 (compliance with donor's conditions), the Foundation must adhere to that policy.
The board must establish a distribution policy that takes into account
(a) the Foundation's needs, including its need to maintain a reasonable balance between the capital value of its funds and the amounts to be distributed;
(b) the estimated total return on investments;
(c) the Foundation's disbursement quota requirements under any applicable taxation legislation; and
(d) any other factor the board considers relevant.
The board may make by-laws
(a) respecting meetings of the board;
(b) respecting the administration of the Foundation's common trust funds, including
(i) the property that may be included in a common trust fund,
(ii) how the investments in a common trust fund are to be valued, and the dates on which the valuation is to be made, and
(iii) how distributions from a common trust fund are to be authorized;
(c) providing for the indemnification of directors, officers and employees of the Foundation;
(d) respecting liability insurance for directors, officers and employees of the Foundation;
(e) determining the fiscal year of the Foundation;
(f) respecting how documents are to be executed on behalf of the Foundation;
(g) respecting any other matter the board considers advisable for the convenient and efficient carrying out of the objects of the Foundation.
CAPACITY AND POWERS OF THE FOUNDATION
Subject to the other provisions of this Act, the Foundation has the capacity, rights, powers and privileges of a natural person for the purpose of carrying out its objects.
Without limiting subsection (1), but subject to section 16 (compliance with donor's conditions), the Foundation may
(a) solicit and receive property by donation, transfer or otherwise for the objects of the Foundation;
(b) acquire, hold and administer property wherever it is situated;
(c) establish one or more common trust funds to be administered in accordance with the by-laws;
(d) pay the expenses of administering the Foundation and property received or held by it, and charge those expenses against the income arising from the property it holds, on a proportionate basis or on any other basis the board considers equitable; and
(e) retain a financial institution or other person, on terms approved by the board, to
(i) provide advice regarding investments or the administration of property, or
(ii) make and manage investments on behalf of the Foundation, in accordance with the board's investment policy.
With the board's approval, the Foundation may enter into an agreement with a non-profit organization or registered charity authorized to operate in Manitoba for the Foundation to receive, invest and manage funds on behalf of the organization or charity.
The powers of the Foundation may be exercised in respect of all property held by the Foundation, whether it was received before or after the coming into force of this Act.
DONATIONS AND DISTRIBUTION
This Act is to be liberally construed to give effect to charitable donations within the objects of the Foundation.
Any form of words is sufficient to constitute a donation for the purposes of this Act, so long as the donor indicates an intention to contribute presently or prospectively to the Foundation or to a fund of the general nature indicated by this Act.
The board, in respect of a donation made in trust of any property that takes effect in the future, may accept and exercise
(a) any power of appointment, settlement or distribution with respect to some or all of the income derivable from the property in the interim; and
(b) the power to nominate executors and trustees in the manner provided in the instrument creating the trust.
The Foundation must
(a) comply with any trusts or conditions that attach to property it receives; and
(b) observe any directions of the donor expressed in the instrument creating the trust or effecting the donation to the Foundation;
unless, in the board's opinion, to do so would jeopardize the Foundation's status as a registered charity. In that case, the Foundation may depart from the trusts, conditions or directions to the extent the board considers necessary to maintain that status.
To the extent required, the board may depart from the donor's directions or from the trusts or conditions attaching to property if
(a) the donor has died or is not available, or in the case of a corporate donor, the corporation has been dissolved; and
(b) conditions make it no longer possible, practical or wise for the board to carry out the express wishes of the donor.
If in making a donation the donor indicates that it or the income from it is to be used outside of Manitoba for a charitable purpose consistent with the Foundation's objects, the board may accept the donation and, despite subsection 4(2), give effect to the donor's wishes.
Subject to section 16 and the board's distribution policy, donations to the Foundation, or substituted property, are to be held in perpetuity by the Foundation for the purpose of earning income to be used for the Foundation's objects.
In accordance with its distribution policy, the board must determine the amount to be distributed each year in the advancement of its objects and, subject to section 16, distribute it to organizations that, in the board's opinion, are engaged in one or more of the Foundation's charitable purposes.
CUSTODY OF FUNDS
The Foundation must appoint one or more trust companies as custodian of the funds and property received by the Foundation. The appointment requires the approval of the board.
A trust company is eligible to be appointed as custodian only if
(a) it is authorized to act as an executor or administrator in Manitoba; and
(b) it agrees with the Foundation to
(i) observe and give effect to all directions given to it by the board regarding the Foundation's property,
(ii) make distributions as directed by the board from time to time, and
(iii) provide information and permit inspection of records as required for an audit of the Foundation's financial statements.
The Foundation may at any time, with the approval of the board, revoke the appointment of a custodian and appoint another trust company in its place.
A trustee or other person holding property in trust for a purpose similar, in whole or in part, to the objects of the Foundation, may, with the consent of the Foundation, apply to a judge of the Court of Queen's Bench for an order directing the person to hand over the property to the Foundation to be used
(a) by the Foundation in the same manner, and for the same purposes, as other donations made to the Foundation; or
(b) for any charitable purpose stipulated in the application.
The judge may make the order requested. Upon handing over the property in compliance with the order, the trustee or other person is discharged from all further responsibilities with respect to the property.
The Foundation must not relieve a financial institution or other person retained under clause 11(2)(e), or a trust company appointed as custodian under section 19, from having to exercise the degree of care that the institution, person or company is required to exercise at law.
The board must
(a) have an audit of the financial statements of the Foundation made at least once in every fiscal year by an independent auditor;
(b) make copies of the auditor's report available to the public on request; and
(c) publish in a newspaper with general circulation in the City of Winnipeg
(i) a summary of the financial statements of the Foundation, and
(ii) a copy of the auditor's report in respect of the financial statements.
On the dissolution of the Foundation and after payment of all its debts and liabilities, its remaining assets must be distributed to other registered charities.
The Corporations Act does not apply to the Foundation.
REPEAL AND COMING INTO FORCE
The Winnipeg Foundation Act, R.S.M. 1990, c. 222, is repealed.
This Act comes into force on the day it receives royal assent.