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This version was current from June 29, 1998 to September 12, 2013.
Note: It does not reflect any retroactive amendment enacted after September 12, 2013.
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RSM 1990, c. 16
The Brandon Area Foundation Incorporation Act
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WHEREAS it was desirable to create a perpetual corporation to receive donations in trust for charitable, educational or cultural purposes and to provide responsible trustees specially selected for the purpose to have the custody and management of the property so donated to the end that the net annual income should be devoted perpetually to charitable purposes in accordance with the directions of an advisory board whose members should give their service gratuitously and who should be chosen periodically from men and women evincing an interest in the welfare of the Brandon area community, having regard to directions made and given by the makers of such donations;
AND WHEREAS the persons hereinafter named, by their petition, prayed that the Brandon Area Foundation should be incorporated: Stephen Adolph Magnacca, Realtor, Reginald O. Lissaman, Builder, Robert Addison Clement, Barrister-at-Law, and Victor Rosenman, Merchant, all of the City of Brandon, in the Province of Manitoba, and Joseph Secter, Merchant, of the City of Winnipeg, in the Province of Manitoba;
AND WHEREAS their prayer was granted, and resulted in the enactment of An Act to Incorporate The Brandon Area Foundation, assented to May 11, 1965;
AND WHEREAS the Minister of Justice has caused the Act to be prepared in English and French for re-enactment in accordance with a judgment dated June 13, 1985 and an order dated November 4, 1985 of the Supreme Court of Canada;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Brandon Area Foundation (hereinafter referred to as "the foundation") is continued as a corporation consisting of those persons who are members of the advisory board of the foundation on the coming into force of this Act and such other persons as may become such members.
There is no capital stock in the foundation, and the foundation shall be composed of the members for the time being of the advisory board, (hereinafter called "the board"), provision for whose appointment is hereinafter made.
The head office of the foundation shall be in the City of Brandon, in the Province of Manitoba.
The foundation has all the powers necessary to do such things as are incidental or conducive to the attainment of its objects, as contemplated by this Act, including, without limiting the generality of the foregoing, the power
(a) to receive donations of, and hold, control and administer, property of every kind and description, whether real or personal and wheresoever situate;
(b) if not in contravention of an express term of the donation under which it be received, to convert any property at any time or from time to time received or held by the foundation into any other form, and for such purpose to sell, dispose of, assign, transfer, lease or exchange the same;
(c) to pass on and entrust to one or more trust companies the custody and management of all or any portion of the property at any time or from time to time received or held by the foundation, in such manner and in such portions as the board may deem proper, and enter into agreements with such companies with regard thereto;
(d) to lease any lands at any time held by the foundation.
The foundation, as soon as practicable after a donation has been received and become operative, shall appoint one or more trust companies to have the custody and management of the property included in the donation or such portion or portions thereof as may be allotted to each of such companies by the board, and to act as trustee or trustees thereof for the foundation.
In making original appointments of trustees under subsection (1), effect shall be given to any directions in writing given by the donor and expressed in the instrument creating the trust.
The foundation may at any time, on a resolution passed by a majority of the board, revoke the appointment of any trust company or trust companies as trustee or trustees, and appoint another trust company or trust companies as new trustee or trustees.
A trust company shall not be appointed a trustee under this section unless at the time of the appointment it is authorized to act as an executor or administrator in the province.
All transfers, transmissions, applications, assignments or conveyances of property by the foundation shall be executed by and on behalf of the foundation in such a manner as the foundation may from time to time by by-law prescribe, and shall further be executed by the trustee for the time being of the property to be transferred, transmitted, applied for, assigned or conveyed.
Each trust company during its continuance in office as trustee for the foundation shall
(a) have the custody of and manage and deal with in an efficient manner all property entrusted to it by the foundation, and make all investments, re-investments, conversions, sales or dispositions thereof which may at any time or from time to time appear necessary or desirable, but no trust company shall make any investments or re-investments in any property or security other than securities in which a trustee or trust company may invest trust moneys under the laws of the Province of Manitoba or in which life insurance companies are permitted to invest their funds under the Canadian and British Insurance Companies Act (Canada);
(b) observe, carry out, perform and give effect to all terms, provisions and conditions which may in any instance be attached to the donation of any property by the donor thereof and expressed in the instrument creating the trust;
(c) give effect to and observe all directions with regard to any property entrusted to it by the foundation under the provisions of this Act, which may at any time or from time to time be given in writing by the board, if such directions, except as provided in section 9, do not contravene and are not inconsistent with, any of the terms, provisions or conditions referred to in clause (d) or any other provision of this Act;
(d) distribute from the money in its possession such sums and in such manner as the board shall be resolution direct; and
(e) pay all such accounts and expenses of the foundation as the board shall direct in writing.
The board shall be appointed by those persons who may from time to time hold the following offices:
(a) the Mayor of the City of Brandon;
(b) the Reeve of the Rural Municipality of Cornwallis;
(c) the senior Bencher of the Western Judicial District;
(d) the Chief Justice of the Province of Manitoba or his nominee;
(e) the President of the Brandon Chamber of Commerce;
or by a majority of such persons in joint session, (who are hereinafter referred to as "the appointors").
The board shall consist of not fewer than nine and not more than 12 members including the Mayor of the City of Brandon who is ex officio a member of the board, as the appointors or a majority of them in their sole discretion may from time to time deem advisable.
All members of the board shall be residents of the Province of Manitoba.
The appointors shall themselves be eligible for appointment as members of the board.
The foundation may by by-law provide that the terms of office of members of the board may vary so long as no term of any appointee shall be less than two years nor more than five years; the intention being to give proper power, if thought advisable, to insure that there shall, at all times, be at least one member of the board familiar with its past policy.
If no by-law be passed under subsection (5), the term of office of members of the board shall be four years.
Vacancies on the board, however created, shall from time to time be filled for the unexpired term by the appointors.
The board may, at the end of each fiscal year, use and distribute such portion of the income of the foundation for that year as the board deems proper for
(a) providing care for needy men, women, and children, and in particular the sick, aged, destitute, and helpless;
(b) the betterment of underprivileged or delinquent persons;
(c) promoting educational advancement or scientific research;
(d) any charitable, educational, cultural, or other purpose that, in the opinion of the board, makes for mental, moral and physical improvement of the inhabitants of the City of Brandon as now or hereafter constituted and of the Western Judicial District as now or hereafter constituted;
(e) awarding scholarships, fellowships, and grants-in-aid;
(f) making loans, without interest, to any institution or organization having objects in whole or in part similar to the aims and objects of this foundation.
The foundation, if so directed by the donor in an instrument creating a trust or making a gift to it, may administer the capital thereof, and distribute the income therefrom, for any purpose within the scope of the foundation which may be so directed, and the board shall, in deciding the manner in which the income shall be used or applied, respect, and be governed by, any particular wish that may be expressed by the donor in the instrument creating the trust or making the gift to the foundation.
If, in the course of time and after the death of a donor, or, if the donor be a corporation, after the dissolution thereof, conditions arise whereby, in the opinion of the board the departure from such wish would further the true intent and purpose of this Act, the board may, in its absolute discretion, make such a departure to the extent necessary to further that true intent and purpose provided the foundation applies to and receives the approval of the Court of Queen's Bench; and the Court of Queen's Bench may give such approval where the circumstances appear proper.
In the absence of any direction by the donor, it shall be conclusively deemed that donations are made on the condition that they shall be invested and the net income therefrom devoted in perpetuity for any purpose within the scope of the foundation.
For the purposes of effecting the objects of the foundation, the portion of the income of the foundation to be distributed shall, in each year, be used for the assistance of such institutions, organizations, agencies, and bodies, as may be engaged in the promotion or advancement of the objects of the foundation or any of them; and the board may determine what institutions, organizations, agencies, or bodies, (whether or not the same are within the limits of the City of Brandon or the Western Judicial District) are to benefit by that assistance in each year, and to what extent.
Subject to subsection (2), all powers, authority, and discretion, that under this section are exercisable by the board, shall be exercised in the full and absolute discretion of the board, or by a majority of the members of the board present at any duly constituted meeting thereof.
The board may appoint such officers and engage such employees at such salaries or for such remuneration as the board may deem proper and necessary and may incur such expenditure incidental to the conduct of the affairs of the foundation and the carrying out of its objects as to the board may appear requisite and the board shall approve of the payment of all such salaries and expenditure before payment thereof shall be made or directed to be made by any of the said trustees.
The foundation may pass by-laws regulating the carrying out of such duties as are by this Act assigned to it or the board, including the fixing of the fiscal year, the time or times of distribution, the term of office of the members of the advisory board, the appointment of a chairman, and such other matters as may be deemed advisable for the convenient and efficient carrying out of the objects of this Act.
By a resolution approved by all the members of the advisory board part of the principal constituting the trust estate may be withdrawn and disbursed from time to time for any purpose within the scope of the foundation; provided however, that no more than 5% of the entire amount held as principal at the time of any withdrawal shall be so withdrawn, and no subsequent withdrawal shall take place till the amount of the principal shall at least be equal to the amount thereof at the time of the last previous withdrawal.
Any form of words shall be sufficient to constitute a donation for the purpose of this Act so long as the donor indicates an intention to contribute to the foundation; and this Act shall be construed liberally and in furtherance of making gifts to the foundation for any purpose within the scope of the foundation effective.
Where property has been donated to the foundation and the donor is desirous that a part of the income derivable therefrom shall be distributed for charitable, educational or cultural purposes for the benefit of citizens of other municipalities and so indicates in the instrument creating the trust, the board may accept and exercise the trust in respect of the distribution of such part as fully and effectually as in respect of the remainder.
Where a donation has been made to the foundation in trust of any property to take effect in future, the board is empowered to accept and exercise any powers of appointment, settlement or distribution with respect to the income in whole or in part derivable from such property in the interim, and also power to nominate executors and trustees in the manner provided in the instrument creating the trust.
The foundation shall cause an audit to be made at least once in every fiscal year by an independent auditor of the receipts and disbursements of each separate donation, and shall cause to be published in at least one newspaper reputed to be of the largest circulation in the Brandon area, a certified statement by such auditor showing in detail the investments made of all funds donated to and vested in trustees for the foundation, the amount of income received during the preceding fiscal year, and the purpose for which the income had been used, and a classified statement of the expenses of the trustees and of the board.
It shall be the duty of the trustees to give full information and permit the necessary inspection to enable such audits to be made.
The foundation shall adopt a corporate seal.
NOTE: This Act replaces S.M. 1965, c. 112.