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

PART I
INTERPRETATION AND APPLICATION

Definitions

1(1)   In this Act,

"affairs" means the relationships among a body corporate, its affiliates and the shareholders, directors and officers of those bodies corporate but does not include the business carried on by those bodies corporate; (« affaires internes »)

"affiliate" means an affiliated body corporate within the meaning of subsection (2); (« groupe »)

"articles" means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution, articles of revival and any amendments thereto, and includes any Act, statute or ordinance by or under which a body corporate has been incorporated, and any letters patent, supplementary letters patent, certificate of incorporation, memorandum of association, and any other document evidencing corporate existence; (« statuts »)

"associate" when used to indicate a relationship with any person means

(a) a body corporate of which that person beneficially owns or controls, directly or indirectly, shares or securities currently convertible into shares carrying more than ten per cent of the voting rights under all circumstances or by reason of the occurrence of an event that has occurred and is continuing, or a currently exercisable option or right to purchase such shares or such convertible securities, or

(b) a partner of that person acting on behalf of the partnership of which they are partners, or

(c) a trust or estate in which that person has a substantial beneficial interest or in respect of which he serves as a trustee or in a similar capacity, or

(d) a spouse, common-law partner or child of that person, or

(e) a relative of that person or of his spouse or common-law partner if that relative has the same residence as that person; (« liens »)

"auditor" includes a partnership of auditors; (« vérificateur »)

"beneficial interest" means an interest arising out of the beneficial ownership of securities; (« propriété véritable »)

"beneficial ownership" includes ownership through a trustee, legal representative, agent or other intermediary; (« propriétaire véritable »)

"body corporate" includes a company or other body corporate wherever or however incorporated; (« personne morale »)

"business" includes the undertaking carried on by a body corporate, without share capital; (« entreprise »)

"commission" means The Manitoba Securities Commission; (« Commission »)

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"corporation" means a body corporate heretofore or hereafter incorporated by or under an Act of the Legislature; (« corporation »)

"court" means the Court of King's Bench; (« tribunal »)

"Crown" means the Crown in right of the province; (« Couronne »)

"debt obligation" means a bond, debenture, note or other evidence of indebtedness or guarantee of a body corporate, whether secured or unsecured; (« titre de créance »)

"Director" means the Director appointed under section 253; (« directeur »)

"director" means a person occupying the position of director by whatever name called, and "directors" and "board of directors" includes a single director; (« administrateur »)

"electronic meeting" means a meeting in which persons participate, or are entitled to participate, electronically; (Version anglaise seulement)

"electronically", in relation to participating in a meeting, means being connected by telephone or other electronic means in a manner that allows all participants to communicate with each other concurrently; (Version anglaise seulement)

"extra-provincial body corporate" means a body corporate that is incorporated otherwise than by or under the authority of an Act of the Legislature or of the Parliament of Canada; (« personne morale extra-provinciale »)

"fully electronic meeting" means an electronic meeting at which persons who are entitled to participate must do so electronically; (Version anglaise seulement)

"incorporator" means a person who signs articles of incorporation; (« fondateur »)

"individual" means a natural person; (« particulier »)

"liability" includes a debt of a corporation arising under section 38, subsection 184(25) or clause 234(3)(f) or 234(3)(g); (« passif »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"ordinary resolution" means a resolution passed by a majority of the votes cast by the shareholders who voted in respect of that resolution; (« résolution ordinaire »)

"person" includes an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative; (« personne »)

"prescribed" means prescribed by the regulations; (« prescrit » ou « réglementaire »)

"redeemable share" means a share issued by a corporation

(a) that the corporation may purchase or redeem upon the demand of the corporation, or

(b) that the corporation is required by its articles to purchase or redeem at a specified time or upon the demand of a shareholder; (« action rachetable »)

"registered form" means a registered form as defined in The Securities Transfer Act; (« nominatif »)

"resident of Canada" means an individual who is

(a) ordinarily resident in Canada, or

(b) not ordinarily resident in Canada, but who is a member of a prescribed class of persons; (« résident canadien »)

"security" means a share of any class or series of shares or a debt obligation of a body corporate and includes a certificate evidencing a share or debt obligation; (« valeur mobilière »)

"security interest" means an interest in or charge on property of a corporation to secure payment of a debt or performance of any other obligation of the corporation; (« sûreté »)

"send" includes deliver; (« envoyer »)

"series" in relation to shares means a division of a class of shares; (« série »)

"shareholder" includes a member of a corporation without share capital except where inconsistent with the provisions of Part XXII; (« actionnaire »)

"special Act" means an Act of the Legislature other than this Act or any Act for which this Act is substituted; (« loi spéciale »)

"special resolution" means a resolution passed by a majority of not less than 2/3 of the votes cast by the shareholders who voted in respect of that resolution or signed by all the shareholders entitled to vote on that resolution; (« résolution spéciale »)

"unanimous shareholder agreement" means an agreement described in subsection 140(2) or a declaration of a shareholder described in subsection 140(3). (« convention unanime des actionnaires »)

Affiliated corporations

1(2)   For the purposes of this Act,

(a) one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person; and

(b) if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other.

Control

1(3)   For the purposes of this Act, a body corporate is controlled by a person if

(a) securities of the body corporate to which are attached more than 50% of the votes that may be cast to elect directors of the body corporate are held, other than by way of security only, by or for the benefit of that person; and

(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate.

Holding body corporate

1(4)   A body corporate is the holding body corporate of another if that other body corporate is its subsidiary.

Subsidiary body corporate

1(5)   A body corporate is a subsidiary of another body corporate if it is controlled by that other body corporate.

Deemed distribution to the public

1(6)   For the purposes of this Act, securities of a body corporate

(a) issued upon a conversion of other securities; or

(b) issued in exchange for other securities;

are deemed to be securities that are part of a distribution to the public if those other securities were part of a distribution to the public.

Distribution to the public

1(7)   For the purposes of this Act, a body corporate has made a distribution to the public, where a security of the body corporate

(a) is part of a distribution to the public and in respect of the security, there has been a filing of a prospectus, statement of material facts, registration statement, securities exchange take-over bid circular or similar document under the laws of Manitoba or any jurisdiction outside Manitoba; or

(b) is deemed to be part of a distribution to the public, and the security has been issued and a filing referred to in clause (a) would be required if the security were being issued currently; or

(c) is listed on a stock exchange.

Registered common-law relationship

1(8)   For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

S.M. 2002, c. 24, s. 15; S.M. 2002, c. 48, s. 28; S.M. 2008, c. 14, s. 135; S.M. 2022, c. 4, s. 31.

Application of Act

2(1)   Subject to subsections (2) and (3) and section 3, this Act, except where it is otherwise expressly provided, applies to every corporation.

Inconsistent provisions

2(2)   Where a provision of Part XXI, XXII, XXIII, or XXIV is inconsistent with or repugnant to any other provision of this Act, the provision of that Part in so far as it affects a corporation to which that Part applies supersedes and prevails over the other provision of this Act.

Where Part applies to class of corporation

2(3)   Where in this Act, it is expressly provided that a Part applies to a particular type or class of corporations, that Part does not apply to a corporation that is not of that type or class.

Individual with significant control

2.1(1)   For the purposes of this Act, each of the following individuals is an individual with significant control over a corporation:

(a) an individual who has any of the following interests or rights, or any combination of them, in respect of a significant number of shares of the corporation:

(i) the individual is the registered holder of them,

(ii) the individual is the beneficial owner of them, or

(iii) the individual has direct or indirect control or direction over them;

(b) an individual who has any direct or indirect influence that, if exercised, would result in control in fact of the corporation;

(c) an individual to whom prescribed circumstances apply.

Joint ownership or control

2.1(2)   Two or more individuals are each considered to be an individual with significant control over a corporation if, in respect of a significant number of shares of the corporation,

(a) an interest or right, or a combination of interests or rights, referred to in clause (1)(a) is held jointly by those individuals; or

(b) a right, or combination of rights referred to in clause (1)(a), is subject to any agreement or arrangement under which the right or rights are to be exercised jointly or in concert by those individuals.

Significant number of shares

2.1(3)   For the purposes of this section, a significant number of shares of a corporation is

(a) any number of shares that carry 25% or more of the voting rights attached to all of the corporation's outstanding voting shares; or

(b) any number of shares that is equal to 25% or more of all of the corporation's outstanding shares measured by fair market value.

S.M. 2019, c. 25, s. 46.

Exceptions

3(1)   Except where it is otherwise expressly provided,

(a) this Act does not apply to a body corporate that is a bank incorporated under an Act of Parliament; and

(b) Parts II, V and VI, Division I of Part X, and Parts XIII to XIX and Parts XXI to XXIV do not apply to a corporation created for government purposes or municipal purposes or to corporations created under The Public Schools Act.

Exceptions

3(2)   This Act does not apply

(a) to a corporation that is a cooperative within the meaning of The Cooperatives Act except to the extent that The Cooperatives Act makes this Act or any provision of this Act apply to cooperatives;

(b) to a corporation that is a credit union or a caisse populaire within the meaning of The Credit Unions and Caisses Populaires Act except to the extent that The Credit Unions and Caisses Populaires Act makes this Act or any provision of this Act apply to credit unions and to caisses populaires; or

(c) to The City of Winnipeg or to a municipality that is formed or continued under The Municipal Act.

Non-application of certain provisions to insurers

3(3)   The following provisions do not apply to an insurer to which Part XXIII applies:

(a) section 97;

(b) subsections 100(1) and (3);

(c) subsections 105(2) to (4);

(d) subsections 109(3) and (4);

(e) subsection 140(2);

(f) section 157;

(g) subsection 162(6);

(h) subsection 165(1) to (3).

R.S.M. 1987 Supp., c. 10, s. 1; S.M. 1996, c. 58, s. 448; S.M. 2002, c. 39, s. 524; S.M. 2004, c. 42, s. 19; S.M. 2007, c. 10, s. 39; S.M. 2017, c. 34, s. 17; S.M. 2021, c. 24, s. 117.

Objects of existing corporations

4(1)   Where before the coming into force of this Act, the words "and capable forthwith of exercising all the functions of an incorporated company, with powers and privileges, and subject to the provisions and restrictions applicable thereto, set forth in the said Act, for the objects following, that is to say:" or words of like effect are contained in the articles of a corporation, those words are deemed to be struck out and the words "and capable forthwith of exercising all the functions of a corporation, subject to the provisions and restrictions applicable thereto, and the business of the corporation is restricted to the following:" are deemed to be substituted therefor.

Powers of existing corporation

4(2)   Where the articles of a corporation excluded, immediately before the coming into force of this Act, any of the powers authorized by any former Companies Act, the articles are deemed to restrict the corporation from exercising the power so excluded.

PART II
INCORPORATION

Incorporators

5(1)   One or more persons, being a body corporate or a natural person, may incorporate a corporation by signing and delivering to the Director articles of incorporation.

Exception

5(2)   No person who

(a) is less than 18 years of age; or

(b) has the status of a bankrupt;

may incorporate a corporation.

Articles of incorporation

6(1)   Articles of incorporation shall be in the form the Director requires and shall set out, in respect of the proposed corporation,

(a) the name of the corporation;

(b) the place in Manitoba where the registered office is to be situated, and the address, giving the street and number, if any;

(c) the classes and any maximum number of shares that the corporation is authorized to issue, and

(i) if there will be two or more classes of shares, the rights, privileges, restrictions and conditions attaching to each class of shares, and

(ii) if a class of shares may be issued in series, the authority given to the directors to fix the number of shares in, and to determine the designation of, and the rights, privileges, restrictions and conditions attaching to, the shares of each series;

(d) if the issue transfer or ownership of shares of the corporation is to be restricted, a statement to that effect, and a statement as to the nature of such restrictions;

(e) the number of directors or, subject to clause 102(a), the minimum and maximum number of directors of the corporation, and in every case the names in full of each first director and his residence address giving the street and number, if any; and

(f) any restrictions on the businesses that the corporation may carry on.

Additional provisions in articles

6(2)   The articles may set out any provisions permitted by this Act or by law to be set out in the by-laws of the corporation.

Special majorities

6(3)   Subject to subsection (4), if the articles or a unanimous shareholder agreement require a greater number of votes of directors or shareholders than that required by this Act to effect any action, the provisions of the articles or of the unanimous shareholder agreement prevail.

Exception

6(4)   The articles may not require a greater number of votes of shareholders to remove a director than the number required by section 104.

Consent required

6(5)   The articles shall have attached, in the form the Director requires, the consent of any first director who is not an incorporator.

R.S.M. 1987 Supp., c. 10, s. 2; S.M. 2006, c. 10, s. 2.

Filing of Articles

7   An incorporator shall send to the Director articles of incorporation.

Certificate of incorporation

8   Upon receipt of articles of incorporation, the Director shall issue a certificate of incorporation in accordance with section 255.

Effect of certificate

9   A corporation comes into existence on the date shown in the certificate of incorporation.

Name of corporation

10(1)   The word "Limited", "Limitee", "Incorporated", "Incorporee" or "Corporation", or the abbreviation "Ltd.", "Ltee.", "Inc." or "Corp.", shall be part, other than only in a figurative or descriptive sense, of the name of every corporation, but a corporation may use and may be legally designated by either the full or the abbreviated form.

Alternative name

10(2)   Subject to subsection 12(2), a corporation may set out its name in its articles in an English form or a French form, an English form and a French form, or in a combined English and French form and it may be legally designated by any such form.

Name in any language form

10(3)   Subject to subsection 12(2), a corporation may set out its name in its articles in any language form and it may be legally designated by any such form.

Publication of corporate name

10(4)   A corporation shall set out its corporate name in legible characters in all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of the corporation.

Other name

10(5)   Subject to subsection (4), section 12 and the provisions of The Business Names Registration Act, a corporation may carry on business under or identify itself by a name other than its corporate name.

Offence

10(6)   Any person that, while not incorporated, uses or carries on business under a name containing the word "Limited", "Limitee", "Incorporated", "Incorporee" or "Corporation", or the abbreviation "Ltd.", "Ltee.", "Inc." or "Corp.", is guilty of an offence and liable on summary conviction to a fine not exceeding $500.

Reservation of name

11(1)   The Director may, upon the request in writing of any person, and upon payment of the prescribed fee, reserve a corporate name for the use and benefit of the person or his nominee for a period of 90 days.

Designating number

11(2)   If requested to do so by the incorporators, the Director shall assign to a corporation as its name, a designating number determined by him.

Notation of name

11(3)   Any person, partnership or association may give the Director notice of the name under which his or its business or undertaking is carried on and thereupon the Director may, if in his opinion the name is not objectionable, make a notation of the name in his records.

Notice of use of name

11(4)   The person, partnership or association may

(a) within three years of the date when the notation is made pursuant to subsection (3); and

(b) within three years of the date when the latest renewal date is noted pursuant to subsection (5);

give the Director notice that he or it is still carrying on his or its business or undertaking under the name noted in his records.

Notice to be recorded

11(5)   The Director shall note in his records the date upon which he receives any notice given pursuant to subsection (3) or (4).

Cancellation of notice

11(6)   Where the Director does not receive a notice pursuant to subsection (4) within the time required by that subsection, he shall cancel the notation, and thereupon it is deemed for the purposes of subsection 12(4) that the Director has not received notice of the name under this section.

S.M. 2014, c. 32, s. 4.

"Business or association" defined

12(1)   In this section, "business or association" means an individual, an association or a partnership carrying on business.

Prohibited names

12(2)   A corporation shall not have a name

(a) that, except as prescribed, is identical with the name of an existing body corporate or of a dissolved body corporate; or

(b) that, except as prescribed and subject to subsection (4), is the same as the name of a business or association; or

(c) that suggests or implies a connection with the Crown, or any member of the Royal Family, or the government of Canada or a province of Canada or any department, branch, bureau, service, agency or activity thereof, without the consent in writing of the appropriate authority; or

(d) that includes the words "Loan" or "Trust", unless it is a corporation to which Part XXIV applies; or

(e) that the Director for any good and valid reason disapproves; or

(f) that is, as prescribed, prohibited or deceptively misdescriptive.

Corporation not to be given similar name

12(3)   A corporation shall not have a name that is similar to the name of any other body corporate if the use of that name by the corporation would be likely to confuse or mislead, unless the body corporate consents in writing to its name being given in whole or in part to the corporation and, if required by the Director, the body corporate undertakes to dissolve or to change its name within six months after the incorporation of the corporation.

Corporation not to be given similar name of business or association

12(4)   A corporation shall not have a name that is the same as or similar to the name of a business or association, if the use of that name by the corporation would be likely to confuse or mislead, unless the business or association consents in writing to its name being given in whole or in part to the corporation and, if required by the Director, the business or association undertakes to cease carrying on business or to change its name within six months after the incorporation of the corporation.

Reserved name

12(5)   A corporation shall not have a name that is reserved for another body corporate, unless the consent in writing is obtained from the person for whose use and benefit the name is reserved.

Undertaking not carried out

12(6)   Where a corporation obtains a name subject to an undertaking given under subsection (3) or (4) and the undertaking is not carried out within the specified time, the Director may direct the corporation that gives the undertaking or the corporation that has obtained the name to change its name to a name that complies with this Act; and if the corporation fails to comply with the directive within 60 days of the service thereof, the Director may revoke the name of the corporation and assign to it a number, and until changed in accordance with section 167 the name of the corporation is thereafter the number so assigned.

Directing change of name

12(7)   Where, through inadvertence or otherwise, a corporation

(a) comes into existence or is continued with a name; or

(b) upon a change of name, obtains a name;

that contravenes this section, the Director may direct the corporation to change its name in accordance with section 167.

Directing change of name of professional corporation

12(7.1)   Where the Director is notified in writing by the proper officer of the governing body of a profession that a corporation whose name was approved by the governing body

(a) has not applied for a permit or licence, or a renewal of a permit or licence, to practise the profession;

(b) having applied, has been denied a permit or licence or a renewal of a permit or licence to practise the profession; or

(c) having been granted a permit or licence to practise the profession, has had the permit or licence suspended, revoked or cancelled;

the Director shall direct the corporation to change its name in accordance with section 167 to a name that complies with this Act and the regulations and does not require the written consent of the governing body.

Directing change of name

12(8)   Where a corporation has a designating number as its name, the Director may direct the corporation to change its name in accordance with section 167, to a name that complies with this Act.

Revocation of name

12(9)   Where a corporation has been directed under subsection (7), (7.1) or (8) to change its name and has not within 60 days from the service of the directive to that effect changed its name to a name that complies with this Act, the Director may revoke the name of the corporation and assign to it a number and until changed in accordance with section 167, the name of the corporation is thereafter the number so assigned.

S.M. 1999, c. 41, s. 62.

Certificate of amendment

13(1)   Where a corporation has had its name revoked and a number assigned to it under subsection 12(6) or 12(9), the Director shall issue a certificate of amendment showing the new name of the corporation and shall publish a notice of the change of name in the manner set out in the regulations.

Effect of certificate

13(2)   The articles of the corporation are amended accordingly on the date shown in the certificate of amendment.

S.M. 2000, c. 41, s. 8.

Personal liability in pre-incorporation contracts

14(1)   Except as provided in this section, a person who enters into a written contract in the name of or on behalf of a corporation before it comes into existence is personally bound by the contract and is entitled to the benefits thereof.

Adoption of pre-incorporation contracts

14(2)   A corporation may, within a reasonable time after it comes into existence, by any action or conduct signifying its intention to be bound thereby, adopt a written contract made before it came into existence, in its name or on its behalf, and upon the adoption

(a) the corporation is bound by the contract and is entitled to the benefits thereof as if the corporation had been in existence at the date of the contract and had been a party thereto; and

(b) the person who purported to act in the name of or on behalf of the corporation ceases, except as provided in subsection (3), to be bound by or entitled to the benefits of the contract.

Application to court

14(3)   Except as provided in subsection (4), whether or not a written contract made before the coming into existence of a corporation is adopted by the corporation, a party to the contract may apply to a court for an order fixing obligations under the contract as joint and several or apportioning liability between or among the corporation and any person who purported to act in the name of or on behalf of the corporation, and upon the application the court may make any order it thinks fit.

Exemption from personal liability

14(4)   If expressly so provided in the written contract, a person who purported to act in the name of or on behalf of the corporation before it came into existence is not in any event bound by the contract or entitled to the benefits thereof.

PART III
CAPACITY AND POWERS

Capacity of a corporation

15(1)   A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.

Extra-territorial capacity

15(2)   A corporation has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Manitoba to the extent that the laws of that jurisdiction permit.

Professional practice by corporation

15(3)   Where the practice of a profession is governed by an Act, a corporation may practise the profession only if the Act expressly permits the practice of the profession by a corporation and subject to the provisions of such Act.

R.S.M. 1987 Supp., c. 10, s. 3.

Powers of a corporation

16(1)   It is not necessary for a by-law to be passed in order to confer any particular power on the corporation or its directors.

Restricted business or powers

16(2)   A corporation shall not carry on any business or exercise any power that it is restricted by its articles from carrying on or exercising, nor shall the corporation exercise any of its powers in a manner contrary to its articles.

Rights preserved

16(3)   No act of a corporation, including any transfer of property to or by a corporation, is invalid by reason only that the act or transfer is contrary to its articles or this Act.

No constructive notice

17   No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning a corporation by reason only that the document has been filed by the Director or is available for inspection at an office of the corporation.

Authority of directors, officers and agents

18   A corporation or a guarantor of an obligation of the corporation may not assert against a person dealing with the corporation or with any person who has acquired rights from the corporation that

(a) the articles, by-laws or any unanimous shareholder agreement have not been complied with;

(b) the persons named in the articles or in the most recent notice sent to the Director under section 108 are not the directors of the corporation;

(c) the place named in the most recent notice sent to the Director under section 19 is not the registered office of the corporation;

(d) a person held out by the corporation as a director, an officer or an agent of the corporation has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the corporation or usual for the director, officer or agent;

(e) a document issued by any director, officer or agent of the corporation with actual or usual authority to issue the document is not valid or not genuine; or

(f) the sale, lease or exchange of property referred to in subsection 183(3) was not authorized;

except where the person has or ought to have, by virtue of his or her position with or relationship to the corporation, knowledge to the contrary.

S.M. 1988-89, c. 11, s. 5; S.M. 2006, c. 10, s. 3.

PART IV
REGISTERED OFFICE AND RECORDS

Registered office

19(1)   A corporation shall at all times have a registered office in the place within Manitoba specified in its articles or in a special resolution under subsection (2).

Change of location

19(2)   A corporation may by special resolution change the location of its registered office to another place within Manitoba.

Change of address

19(3)   The directors of a corporation may change the address of the registered office within the place specified in the articles or a special resolution.

Notice of change

19(4)   A corporation shall send to the Director, within 15 days of any change in the location or address of its registered office, a notice of the change in the form the Director requires.

Annexation or amalgamation of municipalities

19(5)   Where the location of the registered office of a corporation is changed by reason only of the annexation or amalgamation of the place in which the registered office is situate to or with another municipality, that change does not constitute and is not deemed to constitute a change within the meaning of subsection (2).

Exception

19(6)   Notwithstanding this or any other Act or law, no corporation that is restricted by its articles to any undertaking that is in whole or part of a social nature, other than a corporation commonly known as a service club, shall change the location of any of its premises without the prior consent in writing of the minister.

Consent discretionary

19(7)   The giving of the consent mentioned in subsection (6) is in the discretion of the minister.

S.M. 2006, c. 10, s. 4.

Corporate records

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

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

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

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

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

Other records

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

Directors' access to other records

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

Records in Manitoba

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

Exception

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

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

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

20(6)   [Repealed] S.M. 2006, c. 10, s. 5.

Duplicate register of securities

20(7)   The trustee for security holders may maintain at their office a duplicate register of securities.

20(8)   [Repealed] S.M. 2006, c. 10, s. 5.

Offence

20(9)   A corporation that, without reasonable cause, fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.

S.M. 2000, c. 41, s. 9; S.M. 2006, c. 10, s. 5.

Access to corporate records

21(1)   Shareholders and creditors of a corporation, their agents and legal representatives, and the Director may examine the records referred to in subsection 20(1) during the usual business hours of the corporation, and may take extracts therefrom free of charge and, where the corporation has made a distribution to the public, any other person may do so upon payment of a reasonable fee.

Copies of corporate record

21(2)   A shareholder of a corporation is entitled upon request and without charge to one copy of the articles and by-laws and of any unanimous shareholder agreement.

Shareholder lists

21(3)   Shareholders and creditors of a corporation, their agents and legal representatives, the Director and, where the corporation has made a distribution to the public, any other person may, upon payment of a reasonable fee and upon sending to the corporation or its transfer agent the affidavit referred to in subsection (7), require the corporation or its agent to furnish within 10 days from the receipt of the affidavit a list (in this section referred to as the "basic list") made up to a date not more than 10 days before the date of receipt of the affidavit setting out the names of the shareholders of the corporation, the number of shares owned by each shareholder and the address of each shareholder as shown on the records of the corporation.

Supplemental lists

21(4)   A person requiring a corporation to supply a basic list may, if he states in the affidavit referred to in subsection (3) that he requires supplemental lists, require the corporation or its agent upon payment of a reasonable fee to furnish supplemental lists setting out any changes from the basic list in the names and addresses of shareholders and the number of shares owned by each shareholder for each business day following the date the basic list is made up to.

When supplemental lists to be furnished

21(5)   The corporation or its agent shall furnish a supplemental list required under subsection (4)

(a) on the date the basic list is furnished, where the information relates to changes that took place prior to that date; and

(b) on the business day following the day to which the supplemental list relates, where the information relates to changes that take place on or after the date the basic list is furnished.

Holders of options

21(6)   A person requiring a corporation to supply a basic list or a supplemental list, may also require the corporation to include in that list the name and address of any known holder of an option or right to acquire shares of the corporation.

Contents of affidavit

21(7)   The affidavit required under subsection (3) shall state

(a) the name and address of the applicant;

(b) the name and address for service of the body corporate, if the applicant is a body corporate; and

(c) that the basic list and any supplemental lists obtained pursuant to subsection (4) will not be used except as permitted under subsection (9).

Where applicant a body corporate

21(8)   If the applicant is a body corporate, the affidavit shall be made by a director or officer of the body corporate.

Use of shareholder list

21(9)   A list of shareholders obtained under this section shall not be used by any person except in connection with

(a) an effort to influence the voting of shareholders of the corporation; or

(b) an offer to acquire shares of the corporation; or

(c) any other matter relating to the affairs of the corporation.

Offence

21(10)   A person who, without reasonable cause, contravenes 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.

Register

21.1(1)   A corporation must prepare and maintain, at its registered office or at any other place in Manitoba designated by the directors, a register of individuals with significant control over the corporation. The register must contain

(a) the name, date of birth and latest known address of each individual with significant control;

(b) the jurisdiction of residence for income tax purposes of each individual with significant control;

(c) the date on which each individual became or ceased to be an individual with significant control, as the case may be;

(d) a description of how each individual is an individual with significant control over the corporation, including, as applicable, a description of their interests and rights in respect of shares of the corporation;

(e) any other prescribed information; and

(f) a description of each step taken in accordance with subsection (2).

Updating of information

21.1(2)   At least once during each financial year of a corporation, the corporation must take reasonable steps to ensure that it has identified all individuals with significant control over the corporation and that the information in the register is accurate, complete and up to date.

Recording of information

21.1(3)   If the corporation becomes aware of any information referred to in clauses (1)(a) to (e) as a result of steps taken in accordance with subsection (2) or through any other means, the corporation must record that information in the register within 15 days after becoming aware of it.

Information from shareholders

21.1(4)   If the corporation requests information referred to in any of clauses (1)(a) to (e) from one of its shareholders, the shareholder must, to the best of their knowledge, reply accurately and completely as soon as practicable.

Disposal of personal information

21.1(5)   Within one year after the sixth anniversary of the day on which an individual ceases to be an individual with significant control over the corporation, the corporation must — subject to any other Act of the Parliament of Canada or the legislature that provides for a longer retention period — dispose of any of that individual's personal information, as defined in subsection 2(1) of the Personal Information Protection and Electronic Documents Act (Canada), that is recorded in the register.

Offence

21.1(6)   A corporation that, without reasonable cause, contravenes this section is guilty of an offence and liable on conviction to a fine not exceeding $5,000.

Non-application

21.1(7)   This section does not apply to a corporation that is

(a) a reporting issuer under The Securities Act;

(b) listed on a designated stock exchange, as defined in subsection 248(1) of the Income Tax Act (Canada);

(c) licensed as an insurer under The Insurance Act;

(d) a loan corporation or a trust corporation, as those terms are defined in section 315;

(e) a corporation without share capital; or

(f) a member of a prescribed class.

S.M. 2019, c. 25, s. 47.

Inability to identify individuals

21.2   A corporation to which section 21.1 applies must take prescribed steps, if any, if it is unable to identify any individuals with significant control over the corporation.

S.M. 2019, c. 25, s. 47.

Disclosure to Director

21.3(1)   A corporation to which section 21.1 applies must disclose to the Director, on request, any information in its register of individuals with significant control.

Access — affidavit

21.3(2)   On application by a shareholder or creditor of a corporation who provides an affidavit described in subsection (3), the corporation must

(a) provide the applicant with access, during normal business hours, to the register referred to in subsection 21.1(1); and

(b) on payment of a reasonable fee, provide the applicant with an extract of information from the register.

Affidavit

21.3(3)   The affidavit required under subsection (2) must contain

(a) the name and address of the applicant;

(b) the name and address for service of the body corporate, if the applicant is a body corporate; and

(c) the deponent's acknowledgment that any information obtained under subsection (2) will not be used except in accordance with subsection (5).

Application by body corporate

21.3(4)   If the applicant is a body corporate, the affidavit must be sworn or affirmed by a director or officer of the body corporate.

Use of information

21.3(5)   Information obtained under subsection (2) must not be used by any person except in connection with

(a) an effort to influence the voting of shareholders of the corporation;

(b) an offer to acquire securities of the corporation; or

(c) any other matter relating to the affairs of the corporation.

Offence

21.3(6)   A person who, without reasonable cause, contravenes subsection (5) is guilty of an offence and liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months, or to both.

S.M. 2019, c. 25, s. 47.

Offence — preparation and maintenance of register

21.4(1)   Every director or officer of a corporation who knowingly authorizes, permits or acquiesces in the contravention of subsection 21.1(1) by that corporation commits an offence, whether or not the corporation has been prosecuted or convicted.

Offence — recording of false or misleading information

21.4(2)   Every director or officer of a corporation who knowingly records or knowingly authorizes, permits or acquiesces in the recording of false or misleading information in the register of the corporation referred to in subsection 21.1(1) commits an offence.

Offence — provision of false or misleading information

21.4(3)   Every director or officer of a corporation who knowingly provides or knowingly authorizes, permits or acquiesces in the provision to any person or entity of false or misleading information in relation to the register of the corporation referred to in subsection 21.1(1) commits an offence.

Offence — information from shareholders

21.4(4)   Every shareholder who knowingly contravenes subsection 21.1(4) commits an offence.

Penalty

21.4(5)   A person who commits an offence under any of subsections (1) to (4) is liable on conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.

S.M. 2019, c. 25, s. 47.

Form of records

22(1)   All registers and other records required by this Act to be prepared and maintained may be in a bound or loose-leaf form or in a photographic film form, or may be entered or recorded by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.

Precautions

22(2)   A corporation and its agents shall take reasonable precautions to

(a) prevent loss or destruction of;

(b) prevent falsification of entries in; and

(c) facilitate detection and correction of inaccuracies in;

the registers and other records required by this Act to be prepared and maintained.

Offence

22(3)   A person who without reasonable cause contravenes 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.

Corporate seal

23   An instrument or agreement executed on behalf of a corporation by a director, an officer or an agent of the corporation is not invalid merely because a corporate seal is not affixed thereto.

PART V
CORPORATE FINANCE

Shares

24(1)   Shares of a corporation shall be in registered form and shall be without par value.

Transitional

24(2)   Where a corporation is incorporated before the commencement of this Act or where a body corporate is continued under this Act, an issued share with par value of the corporation is, for the purpose of subsection (1), deemed to be a share without par value, and the maximum consideration for which the shares of a particular class may be issued shall not, for the purposes of this Part, exceed the total of the products of the number of shares of each class multiplied by the par value thereof.

Class of shares

24(3)   The articles may provide for more than one class of shares and, if they so provide, there shall be set out therein the rights, privileges, restrictions and conditions attaching to the shares of each class.

Class voting

24(4)   Unless the articles otherwise provide, each share of a corporation entitles the holder thereof

(a) to vote at all meetings of shareholders except meetings at which only holders of a specified class of shares are entitled to vote;

(b) to receive any dividend declared by the corporation; and

(c) to receive the remaining property of the corporation upon a dissolution.

Pre-existing corporations

24(5)   Where prior to November 16, 1964, conditions attaching to shares are set out in the by-laws of a corporation, those conditions are deemed to be conditions contained in the articles.

Transitional

24(6)   Where conditions attaching to shares of a corporation incorporated before the commencement of this Act refer to par value, the reference shall be deemed to be to the equivalent of the par value as stated in the articles.

Issue of shares

25(1)   Subject to the articles, the by-laws and any unanimous shareholder agreement and to section 28, shares may be issued at such times and to such persons and for such consideration as the directors may determine.

Shares non-assessable

25(2)   Shares issued by a corporation are non-assessable and the holders are not liable to the corporation or to its creditors in respect thereof.

Consideration

25(3)   A share shall not be issued until the consideration for the share is fully paid in money, or in property or past services that is not less in value than the fair equivalent of the money that the corporation would have received if the share had been issued for money.

Consideration other than money

25(4)   In determining whether property or past services is the fair equivalent of a money consideration, the directors may take into account reasonable charges and expenses of organization and re-organization and payments for property and past services reasonably expected to benefit the corporation.

Property

25(5)   For the purposes of this section, "property" does not include a promissory note or a promise to pay.

Stated capital account

26(1)   A corporation shall maintain a separate stated capital account for each class and series of shares it issues.

Entries in stated capital account

26(2)   A corporation shall add to the appropriate stated capital account the full amount of any consideration it receives for any shares it issues.

Exception for non-arm's length transactions

26(3)   Notwithstanding subsections 25(3) and 26(2), where a corporation issues shares

(a) in exchange for

(i) property of a person who immediately before the exchange does not deal with the corporation at arm's length within the meaning of that term in the Income Tax Act, or

(ii) shares of a body corporate that immediately before the exchange or that, because of the exchange, does not deal with the corporation at arm's length within the meaning of that term in the Income Tax Act, or

(b) pursuant to an agreement referred to in subsection 176(1) or an arrangement referred to in clause (b) of the definition "arrangement" in subsection 185(1), to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated body corporate,

the corporation may, subject to subsection (4), add to the stated capital accounts maintained for the shares of the classes or series issued the whole or any part of the amount of the consideration it received in the exchange.

Limit on addition to a stated capital account

26(4)   On the issue of a share a corporation shall not add to a stated capital account in respect of the share it issues an amount greater than the amount of the consideration it received for the share.

Constraint on addition to a stated capital account

26(5)   Where a corporation proposes to add any amount to a stated capital account it maintains in respect of a class or series of shares, if

(a) the amount to be added was not received by the corporation as consideration for the issue of shares; and

(b) the corporation has any outstanding shares of more than one class or series;

the addition to the stated capital account must be approved by special resolution.

Other additions to stated capital

26(6)   Where a corporation is incorporated before the commencement of this Act, it may add to a stated capital account any consideration received by it for a share it issued.

Retained earnings added to stated capital

26(7)   A corporation at any time may, subject to subsection (5), add to a stated capital account any amount it credited to a retained earnings or other surplus account.

Transitional

26(8)   Where a corporation is incorporated before the commencement of this Act, subsection (2) does not apply to the consideration received by it before the commencement of this Act unless the share in respect of which the consideration is received is issued after the commencement of this Act.

Continuance

26(9)   Where a body corporate is continued under this Act, subsection (2) does not apply to the consideration received by it before it was so continued unless the share in respect of which the consideration is received is issued after the corporation is so continued.

Transitional

26(10)   Where a corporation is incorporated before the commencement of this Act, any amount unpaid in respect of a share issued by the body corporate before the commencement of this Act and paid after the commencement of this Act shall be added to the stated capital account maintained for the shares of that class or series.

Transitional

26(11)   For the purposes of subsection 32(2), sections 36 and 40 and clause 179(2)(a), where a corporation is incorporated before the commencement of this Act, its stated capital is deemed to include the amount that would have been included in the stated capital account if the corporation had been incorporated under this Act.

Restriction

26(12)   A corporation shall not reduce its stated capital or any stated capital account except in the manner provided in this Act.

Exception for an open-end mutual fund

26(13)   Subsections (1) to (12) and any other provisions of this Act relating to stated capital do not apply to an open-end mutual fund.

"Open-end mutual fund" defined

26(14)   For the purposes of this section, "open-end mutual fund" means a corporation that makes a distribution to the public of its shares and that carries on only the business of investing the consideration it receives for the shares it issues, and all or substantially all of those shares are redeemable upon the demand of a shareholder.

R.S.M. 1987 Supp., c. 10, s. 4; S.M. 1994, c. 20, s. 3; S.M. 2006, c. 10, s. 6.

Shares in series

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

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

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

Series participation

27(2)   If any cumulative dividends or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital.

Restrictions on series

27(3)   No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section shall confer upon a series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding.

Amendment of articles when series designated

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

Certificate of amendment

27(5)   Upon receipt of articles of amendment designating a series of shares, the Director shall issue a certificate of amendment in accordance with section 255.

Effect of certificate

27(6)   The articles of the corporation are amended accordingly on the date shown in the certificate of amendment.

S.M. 2006, c. 10, s. 7.

Pre-emptive right

28(1)   If the articles so provide, no shares of a class shall be issued unless the shares have first been offered to the shareholders holding shares of that class, and those shareholders have a pre-emptive right to acquire the offered shares in proportion to their holdings of the shares of that class, at such price and on such terms as those shares are to be offered to others.

Exception

28(2)   Notwithstanding that the articles provide the pre-emptive right referred to in subsection (1), shareholders have no pre-emptive right in respect of shares to be issued

(a) for a consideration other than money; or

(b) as a share dividend; or

(c) pursuant to the exercise of conversion privileges, options or rights previously granted by the corporation.

Options and rights

29(1)   A corporation may issue certificates, warrants or other evidences of conversion privileges, options or rights to acquire securities of the corporation, and shall set out the conditions thereof

(a) in the certificates, warrants or other evidences; or

(b) in certificates evidencing the securities to which the conversion privileges, options or rights are attached.

Transferable rights

29(2)   Conversion privileges, options and rights to purchase securities of a corporation may be made transferable or non-transferable, and options and rights to purchase may be made separable or inseparable from any securities to which they are attached.

Convertible shares

29(3)   Where shares of a class are converted into shares of another class, the shares converted become the same in all respects as the shares of the class or classes respectively into which they are converted and the number of shares of each class affected by the conversion is changed and the articles are amended accordingly.

Convertible debt obligations

29(4)   Where a corporation has granted privileges to convert any debt obligation into shares or has issued or granted options or rights to acquire shares, the corporation shall reserve and continue to reserve sufficient authorized shares to meet the exercise of the conversion privileges, options and rights.

Restriction regarding bearer shares

29.1(1)   Despite section 29, a corporation must not issue, in bearer form, a certificate, warrant or other evidence of a conversion privilege, option, or right to acquire a share of the corporation.

Replacement

29.1(2)   A corporation must, on the request of a holder of a certificate, warrant or other evidence of a conversion privilege, option or right to acquire a share of the corporation that is in bearer form and that was issued before the coming into force of this section, issue in exchange to that holder, in registered form, a certificate, warrant or other evidence, as the case may be.

S.M. 2019, c. 25, s. 48.

Corporation holding its own shares

30(1)   Except as provided in subsection (2) and sections 31 to 34 a corporation

(a) shall not hold shares in itself or in its holding body corporate; and

(b) shall not permit any of its subsidiary bodies corporate to acquire shares of the corporation.

Subsidiary holding shares of a corporation

30(2)   A corporation shall cause a subsidiary body corporate of the corporation that holds shares of the corporation to sell or otherwise dispose of those shares within five years from the date that the body corporate became a subsidiary of the corporation.

Exception

31(1)   A corporation may in the capacity of a legal representative hold shares in itself or in its holding body corporate unless it or the holding body corporate or a subsidiary of either of them has a beneficial interest in the shares.

Exception

31(2)   A corporation may hold shares in itself or in its holding body corporate by way of security for the purposes of a transaction entered into by it in the ordinary course of a business that includes the lending of money.

Exception

31(3)   A subsidiary corporation that, before November 16, 1964, held shares in itself or in its holding body corporate may continue to hold those shares.

Voting shares

31(4)   A corporation holding shares in itself or in its holding body corporate, or a subsidiary corporation holding shares as described in subsection (3), shall not vote or permit those shares to be voted unless the corporation or subsidiary

(a) holds the shares in the capacity of a legal representative; and

(b) has complied with section 147.

Acquisition of corporation's own shares

32(1)   Subject to subsection (2) and to its articles, a corporation may purchase or otherwise acquire shares issued by it.

Limitation

32(2)   A corporation shall not make any payment to purchase or otherwise acquire shares issued by it 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 after the payment be less than the aggregate of its liabilities and stated capital of all classes.

Alternative acquisition of corporation's own shares

33(1)   Notwithstanding subsection 32(2), but subject to subsection (3) and to its articles, a corporation may purchase or otherwise acquire shares issued by it to

(a) settle or compromise a debt or claim asserted by or against the corporation; or

(b) eliminate fractional shares; or

(c) fulfil the terms of a non-assignable agreement under which the corporation has an option or is obliged to purchase shares owned by a director, an officer or an employee of the corporation.

Alternative acquisition of corporation's own shares

33(2)   Notwithstanding subsection 32(2), a corporation may purchase or otherwise acquire shares issued by it to

(a) satisfy the claim of a shareholder who dissents under section 184; or

(b) comply with an order under section 234.

Limitation

33(3)   A corporation shall not make any payment to purchase or acquire under subsection (1) shares issued by it 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 after the payment be less than the aggregate of its liabilities and the amounts required for payment on a redemption or in a liquidation of all shares the holders of which have the right to be paid prior to the holders of the shares to be purchased or acquired.

Redemption of shares

34(1)   Notwithstanding subsection 32(2) or 33(3), but subject to subsection (2) and to its articles, a corporation may purchase or redeem any redeemable shares issued by it at prices not exceeding the redemption price thereof stated in the articles or calculated according to a formula stated in the articles.

Limitation

34(2)   A corporation shall not make any payment to purchase or redeem any redeemable shares issued by it 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 after the payment be less than the aggregate of

(i) its liabilities, and

(ii) the amount that would be required to pay the holders of shares that have a right to be paid, on a redemption or in a liquidation, rateably with or prior to the holders of the shares to be purchased or redeemed.

Donated shares

35   Subject to subsection 37(5), a corporation may accept from any shareholder a share of the corporation surrendered to it as a gift, but may not extinguish or reduce a liability in respect of an amount unpaid on the share except in accordance with section 36.

Other reduction of stated capital

36(1)   Subject to subsection (3), a corporation may by special resolution reduce its stated capital for any purpose, including, without limiting the generality of the foregoing, for the purpose of

(a) extinguishing or reducing a liability in respect of an amount unpaid on any share;

(b) distributing to the holder of an issued share of any class or series of shares an amount not exceeding the stated capital of the class or series; and

(c) declaring its stated capital to be reduced by an amount that is not represented by realizable assets.

Contents of special resolution

36(2)   A special resolution under this section shall specify the stated capital account or accounts from which the reduction of stated capital effected by the special resolution will be deducted.

Limitation

36(3)   A corporation shall not reduce its stated capital for any purpose other than the purpose mentioned in clause (1)(c) if there are reasonable grounds for believing that

(a) the corporation is, or would after the reduction 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.

Recovery

36(4)   A creditor of a corporation is entitled to apply to a court for an order compelling a shareholder or other recipient

(a) to pay to the corporation an amount equal to any liability of the shareholder that was extinguished or reduced contrary to this section; or

(b) to pay or deliver to the corporation any money or property that was paid or distributed to the shareholder or other recipient as a consequence of a reduction of capital made contrary to this section.

Limitation

36(5)   An action to enforce a liability imposed by this section may not be commenced after two years from the date of the action complained of.

Remedy preserved

36(6)   This section does not affect any liability that arises under section 113.

Adjustment of stated capital account

37(1)   Upon a purchase, redemption or other acquisition by a corporation under section 32, 33, 34, 43 or 184 or clause 234(3)(f), of shares or fractions thereof issued by it, the corporation shall deduct from the stated capital account maintained for the class or series of shares of which the shares purchased, redeemed or otherwise acquired form a part an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series or fractions thereof purchased, redeemed or otherwise acquired, divided by the number of issued shares of that class or series immediately before the purchase, redemption or other acquisition.

Adjustment of stated capital account

37(2)   A corporation shall deduct the amount of a payment made by the corporation to a shareholder under clause 234(3)(g) from the stated capital account maintained for the class or series of shares in respect of which the payment was made.

Adjustment of stated capital account

37(3)   A corporation shall adjust its stated capital account or accounts in accordance with any special resolution referred to in subsection 36(2).

Adjustment of stated capital account

37(4)   Upon a conversion of issued shares of a corporation into shares of another class or series or a change under section 167, 185 or 234 of issued shares of a corporation into shares of another class or series, the corporation shall

(a) deduct from the stated capital account maintained for the class or series of shares converted or changed an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series converted or changed, divided by the number of issued shares of that class or series immediately before the conversion or change; and

(b) add the result obtained under clause (a) and any additional consideration pursuant to the conversion or change to the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been converted or changed.

Stated capital of interconvertible shares

37(5)   For the purposes of subsection (4) and subject to its articles, where a corporation issues two classes of shares and there is attached to each class a right to convert a share of the one class into a share of the other class, if a share of one class is converted into a share of the other class, the amount of stated capital attributable to a share in either class is the aggregate of the stated capital of both classes divided by the number of issued shares of both classes immediately before the conversion.

Cancellation or restoration of shares

37(6)   Shares or fractions thereof of any class or series of shares issued by a corporation and purchased, redeemed or otherwise acquired by it shall be cancelled or, if the articles limit the number of authorized shares, may be restored to the status of authorized but unissued shares of the class.

Exception

37(7)   For the purposes of this section, a corporation holding shares in itself as permitted by subsections 31(1) and (2) is deemed not to have purchased, redeemed or otherwise acquired the shares.

Conversion or change of shares

37(8)   Shares issued by a corporation and converted into shares of another class or series or changed under section 167, 185 or 234 into shares of another class or series shall become issued shares of the class or series of shares into which the shares have been converted or changed.

Effect of change of shares on number of unissued shares

37(9)   Where the articles limit the number of authorized shares of a class of shares of a corporation and issued shares of that class or of a series of shares of that class have become, pursuant to subsection (8), issued shares of another class or series, the number of unissued shares of the first-mentioned class shall, unless the articles otherwise provide, be increased by the number of shares that, pursuant to subsection (8), became shares of another class or series.

Repayment

37(10)   Debt obligations issued, pledged, hypothecated or deposited by a corporation are not redeemed by reason only that the indebtedness evidenced by the debt obligations or in respect of which the debt obligations are issued, pledged, hypothecated or deposited is repaid.

Acquisition and reissue of debt obligations

37(11)   Debt obligations issued by a corporation and purchased, redeemed or otherwise acquired by it may be cancelled or, subject to any applicable trust indenture or other agreement, may be reissued, pledged or hypothecated to secure any obligation of the corporation then existing or thereafter incurred, and that acquisition and reissue, pledge or hypothecation is not a cancellation of the debt obligations.

R.S.M. 1987 Supp., c. 10, s. 5 to 9.

Enforceability of contract

38(1)   A contract with a corporation providing for the purchase of shares of the corporation is specifically enforceable against the corporation except to the extent that the corporation cannot perform the contract without thereby being in breach of section 32 or 33.

Burden of proof

38(2)   In any action brought on a contract referred to in subsection (1), the corporation has the burden of proving that performance thereof is prevented by section 32 or 33.

Status of contracting party

38(3)   Until the corporation has fully performed a contract referred to in subsection (1), the other party retains the status of a claimant entitled 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 but in priority to the other shareholders.

Commission for sale of shares

39   The directors of a corporation may authorize the corporation to pay a commission to any person in consideration of his purchasing or agreeing to purchase shares of the corporation from the corporation or from any other person, or procuring or agreeing to procure purchasers for the shares.

Dividends

40   A corporation shall not declare or pay a dividend 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 and stated capital of all classes.

Form of dividend

41(1)   A corporation may pay a dividend by issuing fully paid shares of the corporation and, subject to section 40, a corporation may pay a dividend in money or property.

Adjustment of stated capital account

41(2)   If shares of a corporation are issued in payment of a dividend, the declared amount of the dividend stated as an amount of money shall be added to the stated capital account maintained or to be maintained for the shares of the class or series issued in payment of the dividend.

Dividends payable on transition

41(3)   Where dividends are payable on shares with par value of a corporation incorporated before the commencement of this Act, the dividends shall be calculated in accordance with the provisions set forth in the articles of the corporation.

42   [Repealed]

S.M. 2006, c. 10, s. 8.

Shareholder immunity

43(1)   The shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation except under subsections 36(4), 140(5) and 219(5).

Lien on shares

43(2)   The articles may provide that the corporation has a lien on a share registered in the name of a shareholder or his legal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act.

Enforcement of lien

43(3)   A corporation may enforce a lien referred to in subsection (2) in accordance with its by-laws.

Liability continues

43(4)   Except as provided in subsection 36(1), a shareholder of a corporation incorporated before the commencement of this Act remains liable for any amount unpaid in respect of an issued share and the corporation may call in and by notice in writing demand from a shareholder the whole or any part of the amount unpaid on a share and if the call is not paid in accordance with the demand, the corporation may forfeit any share on which the call is not paid.

S.M. 1988-89, c. 11, s. 5; S.M. 2008, c. 14, s. 135.

PART VI
SECURITY CERTIFICATES, REGISTERS AND TRANSFERS

Transfers of securities

44   Except as otherwise provided in this Act and The Executions Act, the transfer or transmission of a security is governed by The Securities Transfer Act.

S.M. 1993, c. 29, s. 176; S.M. 2008, c. 14, s. 135.

Rights of holder

45(1)   Every security holder is entitled at his option to a security certificate that complies with this Act or a non-transferable written acknowledgment of his right to obtain a security certificate from a corporation in respect of the securities of that corporation held by him.

Fee for certificate

45(2)   A corporation may charge a fee of not more than $3. for a security certificate issued in respect of a transfer.

Joint holders

45(3)   A corporation is not required to issue more than one security certificate in respect of securities held jointly by several persons, and delivery of a certificate to one of several joint holders is sufficient delivery to all.

Signatures

45(4)   A security certificate shall be signed manually by at least one director or officer of the corporation or by or on behalf of a registrar, transfer agent or branch transfer agent of the corporation, or by a trustee who certifies it in accordance with a trust indenture, and any additional signatures required on a security certificate may be printed or otherwise mechanically reproduced thereon.

No manual signature required

45(5)   Notwithstanding subsection (4), a manual signature is not required on

(a) a security certificate representing

(i) a promissory note that is not issued under a trust indenture,

(ii) a fractional share, or

(iii) an option or a right to acquire a security; or

(b) a scrip certificate.

Continuation of signature

45(6)   If a security certificate contains a printed or mechanically reproduced signature of a person, the corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the corporation, and the security certificate is as valid as if he were a director or an officer at the date of its issue.

Contents of share certificate

45(7)   There shall be stated upon the face of each share certificate issued by a corporation

(a) the name of the corporation;

(b) the words "Incorporated under the Laws of Manitoba" or words of like effect;

(c) the name of the person to whom it was issued; and

(d) the number and class of shares and the designation of any series that the certificate represents.

45(8)   [Repealed] S.M. 2008, c. 14, s. 135.

Transfer restriction on public shares

45(9)   A corporation any of the issued shares of which are or were part of a distribution to the public and remain outstanding and are held by more than one person shall not restrict the transfer of those shares except by way of a constraint permitted under section 168.

Transitional

45(10)   Where a corporation or body corporate continued under this Act has outstanding security certificates, and the words "private company" appear on the certificates, those words are deemed to be a notice of a restriction, lien, agreement or endorsement for the purpose of subsection (8).

Particulars of class

45(11)   There shall be stated legibly on a share certificate issued by a corporation that is authorized to issue shares of more than one class or series

(a) the rights, privileges, restrictions and conditions attached to the shares of each class and series that exists when the share certificate is issued; or

(b) that the class or series of shares that it represents has rights, privileges restrictions or conditions attached thereto and that the corporation will furnish to a shareholder, on demand and without charge, a full copy of the text of

(i) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors, and

(ii) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series.

Duty

45(12)   Where a share certificate issued by a corporation contains the statement mentioned in clause (11)(b), the corporation shall furnish to a shareholder on demand and without charge a full copy of the text of

(a) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors; and

(b) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series.

Fractional share

45(13)   A corporation may issue a certificate for a fractional share or may issue in place thereof scrip certificates in registered form that entitle the holder to receive a certificate for a full share by exchanging scrip certificates aggregating a full share.

Replacement

45(13.1)   A corporation must, on the request of the holder of a certificate for a fractional share or scrip certificate that was issued in bearer form before the coming into force of this subsection, issue in exchange to that holder, in registered form, a certificate for a fractional share or a scrip certificate, as the case may be.

Scrip certificates

45(14)   The directors may attach conditions to any scrip certificates issued by a corporation, including conditions that

(a) the scrip certificates become void if not exchanged for a share certificate representing a full share before a specified date; and

(b) any shares for which such scrip certificates are exchangeable may, notwithstanding any pre-emptive right, be issued by the corporation to any person and the proceeds thereof distributed rateably to the holders of the scrip certificates.

Holder of fractional share

45(15)   A holder of a fractional share issued by a corporation is not entitled to exercise voting rights or to receive a dividend in respect of the fractional share, unless

(a) the fractional share results from a consolidation of shares; or

(b) the articles of the corporation otherwise provide.

Holder of scrip certificate

45(16)   A holder of a scrip certificate is not entitled to exercise voting rights or to receive a dividend in respect of the scrip certificate.

S.M. 2008, c. 14, s. 135; S.M. 2019, c. 25, s. 49.

Securities records

46(1)   A corporation shall maintain a securities register in which it records the securities issued by it in registered form showing with respect to each class or series of securities

(a) the names, alphabetically arranged, and the latest known address of each person who is or has been a security holder;

(b) the number of securities held by each security holder; and

(c) the date and particulars of the issue and transfer of each security.

Central and branch registers

46(2)   A corporation may appoint an agent to maintain a central securities register and branch securities registers.

Where registers are to be kept

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

Effect of registration

46(4)   Registration of the issue or transfer of a security in the central securities register or in a branch securities register is a complete and valid registration for all purposes.

Branch register

46(5)   A branch securities register shall only contain particulars of securities issued or transferred at that branch.

Central register

46(6)   Particulars of each issue or transfer of a security registered in a branch securities register shall also be kept in the corresponding central securities register.

Destruction of certificates

46(7)   A corporation, its agent or a trustee defined in subsection 77(1) is not required to produce

(a) a cancelled security certificate in registered form, an instrument referred to in subsection 29(1) that is cancelled or a like cancelled instrument in registered form six years after the date of its cancellation;

(b) a cancelled security certificate in bearer form or an instrument referred to in subsection 29(1) that is cancelled or a like cancelled instrument in bearer form after the date of its cancellation; or

(c) an instrument referred to in subsection 29(1) or a like instrument, irrespective of its form, after the date of its expiry.

S.M. 2006, c. 10, s. 9.

Dealings with registered holder

47(1)   A corporation or a trustee defined in subsection 77(1) may, subject to The Executions Act and sections 128, 129 and 132 of this Act, treat the registered owner of a security as the person exclusively entitled to vote, to receive notices, to receive any interest, dividend or other payments in respect of the security, and otherwise to exercise all the rights and powers of an owner of the security.

Constructive registered holder

47(2)   Notwithstanding subsection (1), a corporation whose articles restrict the right to transfer its securities shall, and any other corporation may, treat a person as a registered security holder entitled to exercise all the rights of the security holder he represents, if that person furnishes evidence as described in subsection 87(3) of The Securities Transfer Act to the corporation that he is

(a) the executor, administrator, heir or legal representative of the heirs, of the estate of a deceased security holder;

(b) a guardian, committee, trustee, curator or tutor representing a registered security holder who is an infant, an incompetent person or a missing person;

(c) a liquidator of, or a trustee in bankruptcy for, a registered security holder; or

(d) a substitute decision maker for property for a registered security holder, who has been appointed under The Vulnerable Persons Living with a Mental Disability Act, and who has the power to exercise such rights on behalf of the registered owner.

Permissible registered holder

47(3)   If a person upon whom the ownership of a security devolves by operation of law, other than a person described in subsection (2), furnishes proof of his authority to exercise rights or privileges in respect of a security of the corporation that is not registered in his name, the corporation shall treat that person as entitled to exercise those rights or privileges.

Immunity of corporation

47(4)   A corporation is not required to inquire into the existence of, or see to the performance or observance of any duty owed to a third person by a registered holder of any of its securities or by anyone whom it treats, as permitted or required by this section, as the owner or registered holder thereof.

Infants

47(5)   If an infant exercises any rights of ownership in the securities of a corporation, no subsequent repudiation or avoidance is effective against the corporation.

Joint holders

47(6)   A corporation may treat as the owner of a security any survivor of the persons to whom the security was issued as joint holders, if it receives proof satisfactory to it of the death of any of the joint holders.

Transmission of securities

47(7)   Subject to any applicable law relating to the collection of taxes, a person referred to in clause (2)(a) is entitled to become a registered holder or to designate a registered holder, if he deposits with the corporation or its transfer agent

(a) the original grant of probate or of letters of administration, or a copy thereof certified to be a true copy by

(i) the court that granted the probate or letters of administration, or

(ii) a trust company incorporated under the laws of Canada or a province, or

(iii) a lawyer or notary acting on behalf of the person referred to in clause (2)(a); or

(b) in the case of transmission by notarial will in the Province of Quebec, a copy thereof authenticated pursuant to the laws of that Province;

together with

(c) an affidavit or declaration of transmission made by the person referred to in clause (2)(a), stating particulars of the transmission; and

(d) the security certificate that was owned by the deceased holder

(i) in case of a transfer to the person referred to in clause (2)(a), with or without the endorsement of that person, and

(ii) in case of a transfer to any other person, endorsed in accordance with section 29 of The Securities Transfer Act,

and accompanied by any assurance the corporation may require under section 87 of The Securities Transfer Act.

Excepted transmissions

47(8)   Notwithstanding subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration in respect of the transmission, a legal representative of the deceased holder is entitled, subject to any applicable law relating to the collection of taxes, to become a registered holder or to designate a registered holder, if he deposits with the corporation or its transfer agent

(a) the security certificate that was owned by the deceased holder; and

(b) reasonable proof of the governing laws, of the deceased holder's interest in the security and of the right of the legal representative or the person he designates to become the registered holder.

Right of corporation

47(9)   Deposit of the documents required by subsection (7) or (8) empowers a corporation or its agent to record in a securities register the transmission of a security from the deceased holder to a person referred to in clause (2)(a) or to such person as the person referred to in that clause may designate and, thereafter, to treat the person who thus becomes a registered holder as the owner of those securities.

S.M. 1993, c. 29, s. 176; S.M. 2008, c. 14, s. 135.

Overissue

48(1)   When there has been an overissue within the meaning of The Securities Transfer Act and the corporation subsequently amends its articles, or a trust indenture, to increase its authorized securities to a number equal to or in excess of the number of securities previously authorized plus the amount of the securities overissued, the securities so overissued are valid from the date of their issue.

Non-application

48(2)   Subsection (1) does not apply if the issuer has purchased and delivered a security in accordance with subsection 67(2) or (3) of The Securities Transfer Act.

Purchase or payment under Securities Transfer Act

48(3)   A purchase or payment in accordance with subsection 67(2) or (3) of The Securities Transfer Act is not a purchase or payment to which section 32, 33, 34 or 37 applies.

S.M. 2008, c. 14, s. 135.

49 to 76   [Repealed]

S.M. 1991-92, c. 41, s. 4; S.M. 2008, c. 14, s. 135.

PART VII
TRUST INDENTURES

Definitions

77(1)   In this Part,

"event of default" means an event specified in a trust indenture on the occurrence of which

(a) a security interest constituted by the trust indenture becomes enforceable, or

(b) the principal, interest and other moneys payable thereunder become or may be declared to be payable before maturity,

but the event is not an event of default until all conditions prescribed by the trust indenture in connection with the event for the giving of notice or the lapse of time or otherwise have been satisfied; (« cas de défaut »)

"trustee" means any person appointed as trustee under the terms of a trust indenture to which a corporation is a party and includes any successor trustee; (« fiduciaire »)

"trust indenture" means any deed, indenture or other instrument, including any supplement or amendment thereto, made by a corporation after its incorporation or continuance under this Act, under which the corporation issues debt obligations and in which a person is appointed as trustee for the holders of the debt obligations issued thereunder. (« acte de fiducie »)

Application

77(2)   This Part applies to a trust indenture if the debt obligations issued or to be issued under the trust indenture are part of a distribution to the public.

Conflict of interest

78(1)   No person shall be appointed as trustee if there is a material conflict of interest between his role as trustee and his role in any other capacity.

Eliminating conflict of interest

78(2)   A trustee shall, within 90 days after he becomes aware that a material conflict of interest exists

(a) eliminate the conflict of interest; or

(b) resign from office.

Validity

78(3)   A trust indenture, any debt obligations issued thereunder and a security interest effected thereby are valid notwithstanding a material conflict of interest of the trustee.

Removal of trustee

78(4)   If a trustee contravenes subsection (1) or (2), any interested person may apply to a court for an order that the trustee be replaced, and the court may make an order on such terms as it thinks fit.

Qualification of trustee

79   A trustee, or at least one of the trustees if more than one is appointed, shall be a body corporate incorporated under the laws of Canada or a province of Canada and authorized to carry on the business of a trust company.

List of security holders

80(1)   A holder of debt obligations issued under a trust indenture may, upon payment to the trustee of a reasonable fee, require the trustee to furnish within 15 days after delivering to the trustee the statutory declaration referred to in subsection (4), a list setting out

(a) the names and addresses of the registered holders of the outstanding debt obligations;

(b) the principal amount of outstanding debt obligations owned by each of the holders described in clause (a); and

(c) the aggregate principal amount of the debt obligations outstanding;

as shown on the records maintained by the trustee on the day that the statutory declaration is delivered to that trustee.

Duty of issuer

80(2)   Upon the demand of a trustee, the issuer of debt obligations shall furnish the trustee with the information required to enable the trustee to comply with subsection (1).

Corporate applicant

80(3)   If the person requiring the trustee to furnish a list under subsection (1) is a body corporate, the statutory declaration required under that subsection shall be made by a director or officer of the body corporate.

Contents of statutory declaration

80(4)   The statutory declaration required under subsection (1) shall state

(a) the name and address of the person requiring the trustee to furnish the list and, if the person is a body corporate, the address for service thereof; and

(b) that the list will not be used except as permitted under subsection (5).

Use of list

80(5)   A list obtained under this section shall not be used by any person except in connection with

(a) an effort to influence the voting of the holders of debt obligations; or

(b) an offer to acquire debt obligations; or

(c) any other matter relating to the debt obligations or the affairs of the issuer or guarantor thereof.

Offence

80(6)   A person who, without reasonable cause, contravenes subsection (5) 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.

Evidence of compliance

81(1)   An issuer or a guarantor of debt obligations issued or to be issued under a trust indenture shall, before doing any act under clause (a), (b) or (c), furnish the trustee with evidence of compliance with the conditions in the trust indenture relating to

(a) the issue, certification and delivery of debt obligations under the trust indenture; or

(b) the release or release and substitution of property subject to a security interest constituted by the trust indenture; or

(c) the satisfaction and discharge of the trust indenture.

Duty of issuer or guarantor

81(2)   Upon the demand of a trustee, the issuer or guarantor of debt obligations issued or to be issued under a trust indenture shall furnish the trustee with evidence of compliance with the trust indenture by the issuer or guarantor in respect of any act to be done by the trustee at the request of the issuer or guarantor.

Contents of declarations

82   Evidence of compliance as required by section 81 shall consist of

(a) a statutory declaration or certificate made by a director or an officer of the issuer or guarantor stating that the conditions referred to in that section have been complied with; and

(b) where the trust indenture requires compliance with conditions that are subject to review

(i) by legal counsel, an opinion of legal counsel that the conditions referred to in that section have been complied with, and

(ii) by an auditor or accountant, an opinion or report of the auditor of the issuer or guarantor, or such other accountant as the trustee may select, that the conditions referred to in that section have been complied with.

Further evidence of compliance

83   The evidence of compliance referred to in section 82 shall include a statement by the person giving the evidence

(a) declaring that he has read and understands the conditions of the trust indenture described in section 81;

(b) describing the nature and scope of the examination or investigation upon which he based the certificate, statement or opinion; and

(c) declaring that he has made such examination or investigation as he believes necessary to enable him to make the statements or give the opinions contained or expressed therein.

Trustee may require evidence of compliance

84(1)   Upon the demand of a trustee, the issuer or guarantor of debt obligations issued under a trust indenture shall furnish the trustee with evidence in such form as the trustee may require as to compliance with any condition thereto relating to any action required or permitted to be taken by the issuer or guarantor under the trust indenture.

Certificate of compliance

84(2)   At least once in each 12 month period beginning on the date of the trust indenture and at any other time upon the demand of a trustee, the issuer or guarantor of debt obligations issued under a trust indenture shall furnish the trustee with a certificate that the issuer or guarantor has complied with all requirements contained in the trust indenture that, if not complied with, would, with the giving of notice, lapse of time or otherwise, constitute an event of default, or, if there has been failure to so comply, giving particulars thereof.

Notice of default

85   The trustee shall give to the holders of debt obligations issued under a trust indenture, within 30 days after the trustee becomes aware of the occurrence thereof, notice of every event of default arising under the trust indenture and continuing at the time the notice is given, unless the trustee reasonably believes that it is in the best interests of the holders of the debt obligations to withhold the notice and so informs the issuer or guarantor in writing.

Duty of care

86   A trustee in exercising his powers and discharging his duties shall

(a) act honestly and in good faith with a view to the best interests of the holders of the debt obligations issued under the trust indenture; and

(b) exercise the care, diligence and skill of a reasonably prudent trustee.

Reliance on statements

87   Notwithstanding section 86, a trustee is not liable if he relies in good faith upon statements contained in a statutory declaration, certificate, opinion or report that complies with this Act or the trust indenture.

No exculpation

88   No term of a trust indenture or of any agreement between a trustee and the holders of debt obligations issued thereunder or between the trustee and the issuer or guarantor shall operate so as to relieve a trustee from the duties imposed upon him by section 86.

PART VIII
RECEIVERS AND RECEIVER-MANAGERS

Functions of receiver

89   A receiver of any property of a corporation may, subject to the rights of secured creditors, receive the income from the property and pay the liabilities connected with the property and realize the security interest of those on behalf of whom he is appointed, but, except to the extent permitted by a court, he may not carry on the business of the corporation.

Functions of receiver-manager

90   A receiver of a corporation may, if he is also appointed receiver-manager of the corporation, carry on any business of the corporation to protect the security interest of those on behalf of whom he is appointed.

Directors' powers cease

91   If a receiver-manager is appointed, by a court or under an instrument, the powers of the directors of the corporation that the receiver-manager is authorized to exercise may not be exercised by the directors until the receiver-manager is discharged.

Duty to act

92   A receiver or receiver-manager appointed by a court shall act in accordance with the directions of the court.

Duty under instrument

93   A receiver or receiver-manager appointed under an instrument shall act in accordance with that instrument and any direction of a court given under section 95.

Duty of care

94   A receiver or receiver-manager of a corporation appointed under an instrument shall

(a) act honestly and in good faith; and

(b) deal with any property of the corporation in his possession or control in a commercially reasonable manner.

Directions given by court

95   Upon an application by a receiver or receiver-manager, whether appointed by a court or under an instrument, or upon an application by any interested person, a court may make any order it thinks fit including, without limiting the generality of the foregoing,

(a) an order appointing, replacing or discharging a receiver or receiver-manager and approving his accounts;

(b) an order determining the notice to be given to any person or dispensing with notice to any person;

(c) an order fixing the remuneration of the receiver or receiver-manager;

(d) an order requiring the receiver or receiver-manager, or a person by or on behalf of whom he is appointed, to make good any default in connection with the receiver's or receiver-manager's custody or management of the property and business of the corporation, or to relieve the person from any default on such terms as the court thinks fit, and to confirm any act of the receiver or receiver-manager;

(e) an order giving directions on any matter relating to the duties of the receiver or receiver-manager.

Duties of receiver and receiver-manager

96(1)   A receiver or receiver-manager shall

(a) immediately notify the Director of his appointment or discharge;

(b) take into his custody and control the property of the corporation in accordance with the court order or instrument under which he is appointed;

(c) open and maintain a bank account in his name as receiver or receiver-manager of the corporation for the moneys of the corporation coming under his control;

(d) keep detailed accounts of all transactions carried out by him as receiver or receiver-manager;

(e) keep accounts of his administration and have the accounts available during usual business hours for inspection by the directors of the corporation;

(f) prepare at least once in every six-month period after the date of his appointment financial statements of his administration as far as is practicable in the form required by section 149; and

(g) upon completion of his duties, render a final account of his administration in the form adopted for interim accounts under clause (f).

Liability of receiver for wages

96(2)   Where, under the provisions of a security of a body corporate secured by a floating charge or by a charge that includes a floating charge upon the property of the body corporate, a receiver or receiver-manager of the property is appointed or possession of any of the property is taken by or on behalf of a holder of the security, there shall be paid out of any assets secured by the floating charge but not subject to a fixed charge that comes into the hands of the receiver or receiver-manager or holder, in priority to any claim for payment under the security the unpaid wages for a period not exceeding three months of all clerks, labourers, servants, apprentices and other wage earners in the employ of the body corporate as at the date the receiver or receiver-manager is appointed or the holder takes possession, or so much of those wages as may be realized out of those assets.

Receiver subrogated

96(3)   A receiver or receiver-manager or holder making payment under subsection (2) is subrogated, to the extent of the amount of the payment, to the rights that the person receiving payment has under section 114 but subject to the person's prior right to enforce payment under that section of any balance of wages due to and not received by him under subsection (2).

Rights of director who pays receiver

96(4)   Where a receiver or receiver-manager or holder receives payment from a director of the body corporate under subsection (3), the director is entitled to any preference that the person to whose rights the receiver or receiver-manager or holder was subrogated would have, or, if a judgment has been recovered for the amount paid by the director, the director is entitled to an assignment of the judgment.

S.M. 1988-89, c. 11, s. 5.

PART IX
DIRECTORS AND OFFICERS

Duty to manage or supervise management

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

Number of directors

97(2)   A corporation shall have one or more directors but a corporation, any of the issued securities of which are or were part of a distribution to the public and remain outstanding and are held by more than one person, shall have not fewer than three directors, at least two of whom are not officers or employees of the corporation or its affiliates.

S.M. 2006, c. 10, s. 10.

By-laws

98(1)   Unless the articles or by-laws or a unanimous shareholder agreement otherwise provide, the directors may, by resolution, make, amend, or repeal any by-laws that regulate the business or affairs of the corporation.

Shareholder approval

98(2)   The directors shall submit a by-law, or an amendment or a repeal of a by-law, made under subsection (1) to the shareholders at the next meeting of shareholders, and the shareholders may, by ordinary resolution, confirm, reject or amend the by-law, amendment or repeal.

Effective date

98(3)   A by-law, or an amendment or a repeal of a by-law, is effective from the date of the resolution of the directors under subsection (1) until it is confirmed, confirmed as amended or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed

or confirmed as amended, it continues in effect in the form in which it was so confirmed.

Effective date

98(4)   If a by-law, or an amendment or repeal thereof is rejected by the shareholders, or if the directors do not submit the by-law, amendment or repeal to the shareholders as required under subsection (2), the by-law, amendment or repeal ceases to be effective and no subsequent resolution of the directors to make, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed or confirmed as amended by the shareholders.

Shareholder proposal

98(5)   A shareholder entitled to vote at an annual meeting of shareholders may, in accordance with section 131, make a proposal to make, amend or repeal a by-law.

Organization meeting

99(1)   After the issue of the certificate of incorporation, a meeting of the directors of the corporation shall be held at which the directors may

(a) make by-laws;

(b) adopt forms of security certificates and corporate records;

(c) authorize the issue of securities;

(d) appoint officers;

(e) appoint an auditor to hold office until the first meeting of shareholders;

(f) make banking arrangements; and

(g) transact any other business.

Exception

99(2)   Subsection (1) does not apply to a body corporate to which a certificate of amalgamation has been issued under subsection 179(4) or to which a certificate of continuance has been issued under subsection 181(5).

Calling meeting

99(3)   An incorporator or a director may call the meeting of directors referred to in subsection (1) by giving not less than five days written notice of the meeting to each director.

S.M. 1988-89, c. 11, s. 5; S.M. 2022, c. 4, s. 32.

Qualifications of directors

100(1)   The following persons are disqualified from being a director of a corporation:

(a) anyone who is less than 18 years of age;

(b) a person who is not an individual; and

(c) a person who has the status of a bankrupt.

Further qualifications

100(2)   Unless the articles otherwise provide, a director of a corporation is not required to hold shares issued by the corporation.

Residency

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

Residency when directors are three or fewer

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

100(4)   [Repealed] S.M. 2006, c. 10, s. 11.

S.M. 2006, c. 10, s. 11.

Term of office

101(1)   Each director named in the articles holds office from the issue of the certificate of incorporation until the first meeting of shareholders.

Election of directors

101(2)   Subject to clause 102(b), shareholders of a corporation shall, by ordinary resolution at the first meeting of shareholders and at each succeeding annual meeting at which an election of directors is required, elect directors to hold office for a term expiring not later than the close of the third annual meeting of shareholders following the election.

Staggered terms

101(3)   It is not necessary that all directors elected at a meeting of shareholders hold office for the same term.

No stated terms

101(4)   A director not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of shareholders following his election.

Incumbent directors

101(5)   Notwithstanding subsections (1), (2) and (4), if directors are not elected at a meeting of shareholders the incumbent directors continue in office until their successors are elected.

Vacancy among candidates

101(6)   If a meeting of shareholders fails to elect the number or the minimum number of directors required by the articles by reason of the disqualification, incapacity or death of any candidates, the directors elected at that meeting may exercise all the powers of the directors if the number of directors so elected constitutes a quorum.

Cumulative voting

102   Where the articles provide for cumulative voting,

(a) the articles shall require a fixed number and not a minimum and maximum number of directors;

(b) each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by him multiplied by the number of directors to be elected, and he may cast all those votes in favour of one candidate or distribute them among the candidates in any manner;

(c) a separate vote of shareholders shall be taken with respect to each candidate nominated for director unless a resolution is passed unanimously permitting two or more persons to be elected by a single resolution;

(d) if a shareholder has voted for more than one candidate without specifying the distribution of his votes among the candidates, he is deemed to have distributed his votes equally among the candidates for whom he voted;

(e) if the number of candidates nominated for director exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled;

(f) each director ceases to hold office at the close of the first annual meeting of shareholders following his election;

(g) a director may not be removed from office if the votes cast against his removal would be sufficient to elect him and the votes could be voted cumulatively at an election at which the same total number of votes were cast and the number of directors required by the articles were then being elected; and

(h) the number of directors required by the articles may not be decreased if the votes cast against the motion to decrease would be sufficient to elect a director and the votes could be voted cumulatively at an election at which the same total number of votes were cast and the number of directors required by the articles were then being elected.

Ceasing to hold office

103(1)   A director of a corporation ceases to hold office when he

(a) dies or resigns; or

(b) is removed from office in accordance with section 104; or

(c) becomes disqualified under subsection 100(1).

Effective date of resignation

103(2)   A resignation of a director becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later.

Removal of directors

104(1)   Subject to clause 102(g), the shareholders of a corporation may by ordinary resolution at a special meeting remove any director or directors from office.

Exception

104(2)   Where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors, a director so elected may only be removed by an ordinary resolution at a meeting of the shareholders of that class or series.

Vacancy

104(3)   Subject to clauses 102(b) to (e), a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed or, if not so filled, may be filled under section 106.

Attendance at meetings

105(1)   A director of a corporation is entitled to receive notice of and to attend and be heard at every meeting of shareholders.

Statement of director

105(2)   A director 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 or elected to fill his office as director, whether because of his resignation or removal or because his term of office has expired or is about to expire,

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.

Circulating statement

105(3)   A corporation shall forthwith send a copy of the statement referred to in subsection (2) 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.

Immunity

105(4)   No corporation or person acting on its behalf incurs any liability by reason only of circulating a director's statement in compliance with subsection (3).

Filling vacancy

106(1)   Notwithstanding subsection 109(3) but subject to subsections (3) and (4), a quorum of directors may fill a vacancy among the directors, except a vacancy resulting from an increase in the number or minimum number of directors or from a failure to elect the number or minimum number of directors required by the articles.

Calling meeting

106(2)   If there is not a quorum of directors, or if there has been a failure to elect the number or minimum number of directors required by the articles, the directors then in office shall forthwith call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any shareholder.

Class director

106(3)   Where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors and a vacancy occurs among those directors,

(a) subject to subsection (4), the remaining directors elected by that class or series may fill the vacancy except a vacancy resulting from an increase in the number or minimum number of directors for that class or series or from a failure to elect the number or minimum number of directors for that class or series; or

(b) if there are no remaining directors elected by that class or series, any holder of shares of that class or series may call a meeting of the holders thereof for the purpose of filling the vacancy.

Shareholders filling vacancy

106(4)   The articles may provide that a vacancy among the directors shall only be filled by a vote of the shareholders, or by a vote of the holders of any class or series of shares having an exclusive right to elect one or more directors if the vacancy occurs among the directors elected by that class or series.

Unexpired term

106(5)   A director appointed or elected to fill a vacancy holds office for the unexpired term of his predecessor.

Number of directors

107   The shareholders of a corporation may by special resolution increase or, subject to clause 102(h), decrease the number of directors or the minimum or maximum number of directors, but no decrease shall shorten the term of an incumbent director.

Notice of change of directors

108(1)   Within 15 days after a change is made among its directors, a corporation shall send to the Director a notice, in the form the Director requires, setting out the change, and the Director shall file the notice.

Application to court

108(2)   Any interested person, or the Director, may apply to a court for an order to require a corporation to comply with subsection (1), and the court may so order and make any further order it thinks fit.

S.M. 2006, c. 10, s. 12.

Meeting of directors

109(1)   Unless the articles or by-laws otherwise provide, the directors may meet at any place, and upon such notice as the by-laws require.

Quorum

109(2)   Subject to the articles or by-laws, a majority of the number of directors or minimum number of directors required by the articles constitutes a quorum at any meeting of directors, and, notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors.

Residency requirements re quorum

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

Transacting business without resident quorum

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

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

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

Notice of meeting

109(5)   A notice of a meeting of directors shall specify any matter referred to in subsection 110(3) that is to be dealt with at the meeting but, unless the by-laws otherwise provide, need not specify the purpose of the business to be transacted at the meeting.

Waiver of notice

109(6)   A director may in any manner waive a notice of a meeting of directors; and attendance of a director at a meeting of directors is a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

Adjournment

109(7)   Notice of an adjourned meeting of directors is not required to be given if the time and place of the adjourned meeting is announced at the original meeting.

One director meeting

109(8)   Where a corporation has only one director, that director may constitute a meeting.

Electronic meetings

109(9)   Unless prohibited by a corporation's by-laws, a meeting of directors or a committee of directors may be held as an electronic meeting. Such a meeting must be held in accordance with the regulations, if any.

Presence

109(10)   A director participating electronically in a meeting of directors or a committee of directors is deemed to be present at the meeting.

Notice of electronic meeting

109(11)   If a meeting of directors or a committee of directors is held as an electronic meeting, any notice of the meeting must include instructions on how to participate in the meeting electronically.

Fully electronic meetings

109(12)   A requirement in this section to meet at a specific place or to provide notice of the place of a meeting does not apply to a fully electronic meeting.

S.M. 2006, c. 10, s. 13; S.M. 2022, c. 4, s. 33.

Delegation

110(1)   Directors of a corporation may appoint from their number a managing director who is a resident of Canada or a committee of directors and delegate to such managing director or committee any of the powers of the directors.

Resident majority

110(2)   If the directors of a corporation, other than a corporation referred to in subsection 100(4), appoint a committee of directors, a majority of the members of the committee must be residents of Canada.

Limits on authority

110(3)   Notwithstanding subsection (1), no managing director and no committee of directors has authority to

(a) submit to the shareholders any question or matter requiring the approval of the shareholders; or

(b) fill a vacancy among the directors or in the office of auditor; or

(c) issue securities except in the manner and on the terms authorized by the directors; or

(d) declare dividends; or

(e) purchase, redeem or otherwise acquire shares issued by the corporation; or

(f) pay a commission referred to in section 39; or

(g) approve a management proxy circular referred to in Part XII; or

(h) approve any financial statements referred to in section 149; or

(i) adopt, amend or repeal by-laws.

Validity of acts of directors and officers

111   An act of a director or officer is valid notwithstanding an irregularity in his election or appointment or a defect in his qualification.

Resolution in lieu of meeting

112(1)   A resolution in writing, signed by all the directors entitled to vote on that resolution at a meeting of directors or committee of directors, satisfies all the requirements of this Act relating to meetings of directors and is as valid as if it had been passed at a meeting of directors or committee of directors and is effective from the date specified in the resolution, but that date shall not be prior to the date on which the first director signed the resolution.

Filing resolution

112(2)   A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors or committee of directors.

Liability of directors

113(1)   Directors of a corporation who vote for or consent to a resolution authorizing the issue of a share under section 25 for a consideration other than money are jointly and severally liable to the corporation to make good any amount by which the consideration received is less than the fair equivalent of the money that the corporation would have received if the share had been issued for money on the date of the resolution.

Further liability of directors

113(2)   Directors of a corporation who vote for or consent to a resolution authorizing

(a) a purchase, redemption or other acquisition of shares contrary to section 32, 33 or 34;

(b) a commission, contrary to section 39;

(c) a payment of a dividend contrary to section 40;

(d) [repealed] S.M. 2006, c. 10, s. 14;

(e) a payment of an indemnity contrary to section 119;

(f) a payment to a shareholder contrary to section 184 or 234; or

(g) any investment or financial assistance contrary to the provisions of Part XXIV;

are jointly and severally liable to restore to the corporation any amounts so distributed or paid and not otherwise recovered by the corporation.

Contribution

113(3)   A director who has satisfied a judgment rendered under this section is entitled to contribution from the other directors who voted for or consented to the unlawful act upon which the judgment was founded.

Recovery

113(4)   A director liable under subsection (2) is entitled to apply to a court for an order compelling a shareholder or other recipient to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 32, 33, 34, 39, 40, 119, 184 or 234 or the provisions of Part XXIV.

Order of court

113(5)   In connection with an application under subsection (4) a court may, if it is satisfied that it is equitable to do so,

(a) order a shareholder or other recipient to pay or deliver to a director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 32, 33, 34, 39, 40, 119, 184 or 234 or the provisions of Part XXIV;

(b) order a corporation to return or issue shares to a person from whom the corporation has purchased, redeemed or otherwise acquired shares; and

(c) make any further order it thinks fit.

No liability

113(6)   A director is not liable under subsection (1) if he proves that he did not know and could not reasonably have known that the share was issued for a consideration less than the fair equivalent of the money that the corporation would have received if the share had been issued for money.

Limitation

113(7)   An action to enforce a liability imposed by this section may not be commenced after two years from the date of the resolution authorizing the action complained of.

S.M. 2006, c. 10, s. 14.

Liability of directors for wages

114(1)   Directors of a corporation are jointly and severally liable to employees of the corporation for all debts not exceeding six months' wages payable to each of the employees for services performed for the corporation while they are directors respectively.

Conditions precedent to liability

114(2)   A director is not liable under subsection (1) unless

(a) the corporation has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part; or

(b) the corporation has commenced liquidation and dissolution proceedings or has been dissolved and a claim for the debt has been proved within six months after the earlier of the date of commencement of the liquidation and dissolution proceedings and the date of dissolution; or

(c) the corporation has made an assignment, or a receiving order has been made against it under the Bankruptcy Act (Canada), and a claim for the debt has been proved within six months after the date of the assignment or receiving order.

Limitation

114(3)   A director is not liable under this section unless he is sued for a debt referred to in subsection (1) while he is a director or within two years after he has ceased to be a director.

Amount due after execution

114(4)   Where the execution referred to in clause (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.

Subrogation of director

114(5)   Where a director pays a debt referred to in subsection (1) that is proved in liquidation and dissolution or bankruptcy proceedings, he is entitled to any preference that the employee would have been entitled to, and where a judgment has been obtained he is entitled to an assignment of the judgment.

Contribution

114(6)   A director who has satisfied a claim under this section is entitled to contribution from the other directors who were liable for the claim.

Deemed directors

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

Exceptions

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

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

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

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

S.M. 2006, c. 10, s. 15.

Disclosure of interested director contract

115(1)   A director or officer of a corporation who

(a) is a party to a material contract or proposed material contract with the corporation; or

(b) is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the corporation;

shall disclose in writing to the corporation or request to have entered in the minutes of meetings of directors the nature and extent of his interest.

Time of disclosure for director

115(2)   The disclosure required by subsection (1) shall be made, in the case of a director,

(a) at the meeting at which a proposed contract is first considered; or

(b) if the director was not then interested in a proposed contract, at the first meeting after he becomes so interested; or

(c) if the director becomes interested after a contract is made, at the first meeting after he becomes so interested; or

(d) if a person who is interested in a contract later becomes a director, at the first meeting after he becomes a director.

Time of disclosure for officer

115(3)   The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director,

(a) forthwith after he becomes aware that the contract or proposed contract is to be considered or has been considered at a meeting of directors; or

(b) if the officer becomes interested after a contract is made, forthwith after he becomes so interested; or

(c) if a person who is interested in a contract later becomes an officer, forthwith after he becomes an officer.

Time of disclosure for director or officer

115(4)   If a material contract or proposed material contract is one that, in the ordinary course of the corporation's business, would not require approval by the directors or shareholders, a director or officer shall disclose in writing to the corporation or request to have entered in the minutes of meetings of directors the nature and extent of his interest forthwith after the director or officer becomes aware of the contract or proposed contract.

Voting

115(5)   A director referred to in subsection (1) may vote on any resolution to approve the contract if the contract is

(a) an arrangement by way of security for money lent to or obligations undertaken by him for the benefit of the corporation or an affiliate; or

(b) a contract relating primarily to his remuneration as a director, officer, employee or agent of the corporation or an affiliate; or

(c) a contract for indemnity or insurance under section 119; or

(d) a contract with an affiliate; or

(e) other than a contract referred to in clauses (a) to (d);

but, in the case of a contract as described in clause (e), the resolution shall not be valid unless it is approved by not less than 2/3 of the votes of all the shareholders of the corporation to whom notice of the nature and extent of the director's interest in the contract or transaction are declared and disclosed in reasonable detail.

Continuing disclosure

115(6)   For the purposes of this section, a general notice to the directors by a director or officer, declaring that he is a director or officer of or has a material interest in a person and is to be regarded as interested in any contract made with that person, is a sufficient declaration of interest in relation to any contract so made.

Avoidance standards

115(7)   A material contract between a corporation and one or more of its directors or officers, or between a corporation and another person of which a director or officer of the corporation is a director or officer or in which he has a material interest, is neither void nor voidable by reason only of that relationship or by reason only that a director with an interest in the contract is present at or is counted to determine the presence of a quorum at a meeting of directors or committee of directors that authorized the contract, if the director or officer disclosed his interest in accordance with subsection (2), (3), (4) or (6), as the case may be, and the contract was approved by the directors or the shareholders and it was reasonable and fair to the corporation at the time it was approved.

Application to court

115(8)   Where a director or officer of a corporation fails to disclose his interest in a material contract in accordance with this section, a court may, upon the application of the corporation or a shareholder of the corporation, set aside the contract on such terms as it thinks fit.

Officers

116   Subject to the articles and by-laws, and any unanimous shareholder agreement,

(a) the directors may designate the offices of the corporation, appoint as officers persons of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the corporation, except powers to do anything referred to in subsection 110(3);

(b) a director may be appointed to any office of the corporation; and

(c) two or more offices of the corporation may be held by the same person.

Duty of care of directors and officers

117(1)   Every director and officer of a corporation in exercising his powers and discharging his duties shall

(a) act honestly and in good faith with a view to the best interests of the corporation; and

(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

Duty to comply

117(2)   Every director and officer of a corporation shall comply with this Act and the regulations, the articles and by-laws, and any unanimous shareholder agreement.

No exculpation

117(3)   Subject to subsection 140(5), no provision in a contract, the articles, the by-laws or a resolution relieves a director or officer from the duty to act in accordance with this Act or the regulations or relieves him from liability for a breach thereof.

Interpretation

117(4)   This section is in addition to and not in derogation of, any enactment or rule of law relating to the duty or liability of directors or officers of a corporation.

S.M. 1988-89, c. 11, s. 5.

Dissent

118(1)   A director who is present at a meeting of directors or committee of directors is deemed to have consented to any resolution passed or action taken thereat, unless

(a) he requests that his dissent be or his dissent is entered in the minutes of the meeting; or

(b) he sends his written dissent to the secretary of the meeting before the meeting is adjourned; or

(c) he sends his dissent by registered mail or delivers it to the registered office of the corporation immediately after the meeting is adjourned.

Loss of right to dissent

118(2)   A director who votes for or consents to a resolution is not entitled to dissent under subsection (1).

Dissent of absent director

118(3)   A director who was not present at a meeting at which a resolution was passed or action taken is deemed to have consented thereto, unless within seven days after he becomes aware of the resolution he

(a) causes his dissent to be placed with the minutes of the meeting; or

(b) sends his dissent by registered mail or delivers it to the registered office of the corporation.

Defence of reasonable diligence

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

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

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

Defence of good faith

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

S.M. 2006, c. 10, s. 16.

Indemnification

119(1)   Except in respect of an action by or on behalf of the corporation or body corporate to procure a judgment in its favour, a corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or a person who acts or acted at the corporation's request as a director or officer of a body corporate of which the corporation is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the corporation or body corporate, if

(a) he acted honestly and in good faith with a view to the best interests of the corporation; and

(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful.

Indemnification in derivative actions

119(2)   A corporation may with the approval of a court indemnify a person referred to in subsection (1) in respect of an action by or on behalf of the corporation or body corporate to procure a judgment in its favour, to which he is made a party by reason of being or having been a director or an officer of the corporation or body corporate, against all costs, charges and expenses reasonably incurred by him in connection with the action if he fulfils the conditions set out in clauses (1)(a) and (b).

Indemnity as of right

119(3)   Notwithstanding anything in this section, a person referred to in subsection (1) is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by him in connection with the defence of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the corporation or body corporate, if the person seeking indemnity

(a) was substantially successful on the merits in his defence of the action or proceeding; and

(b) fulfils the conditions set out in clauses (1)(a) and (b).

Directors' and officers' insurance

119(4)   A corporation may purchase and maintain insurance for the benefit of any person referred to in subsection (1) against any liability incurred by him

(a) in his capacity as a director or officer of the corporation, except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of the corporation; or

(b) in his capacity as a director or officer of another body corporate where he acts or acted in that capacity at the corporation's request, except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of the body corporate.

Application to court

119(5)   A corporation or a person referred to in subsection (1) may apply to a court for an order approving an indemnity under this section and the court may so order and make any further order it thinks fit.

Notice to director

119(6)   An applicant under subsection (5) shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel.

Other notice

119(7)   Upon an application under subsection (5), the court may order notice to be given to any interested person and that person is entitled to appear and be heard in person or by counsel.

Remuneration

120   Subject to the articles, the by-laws and any unanimous shareholder agreement, the directors of a corporation may fix the remuneration of the directors, officers and employees of the corporation.

PART X
RETURNS AND INSIDERS

DIVISION I RETURNS

Annual return

121(1)   Every body corporate required to register under this Act shall, on or before the prescribed date, send to the Director an annual return in the form the Director requires, and the Director shall file it.

Who shall sign

121(2)   A director, officer, or agent of the body corporate shall sign the return under subsection (1) and certify it to be correct.

S.M. 2006, c. 10, s. 17.

Special return

122(1)   The minister may, at any time, by notice, require a body corporate or a director or an officer thereof to make a special return upon any subject connected with the affairs of the body corporate, within the time specified in the notice.

Contents of special return

122(2)   The special return under subsection (1) may be in respect of any matter that is certified by the minister to be in the public interest and may include information in respect of the beneficial ownership or interest in the securities of the body corporate.

Ownership of shares

123   The minister may by notice require the person shown on any return as the registered holder of 10% or more of the issued voting shares of a body corporate, to file, in the form the minister requires, a declaration with respect to the ownership of the shares.

S.M. 2006, c. 10, s. 18.

Offence

124(1)   A person who fails, within the time specified in the notice sent by the minister, to file the special return under subsection 122(1), or the declaration under section 123, is guilty of an offence and liable on summary conviction to a fine not exceeding $2,000. or to imprisonment for a term not exceeding one year or to both.

Relief by court

124(2)   Where it appears to the court that a person is or may be liable in respect of a breach or non-compliance with subsection (1) but that he has acted honestly and reasonably, and that, having regard to all the circumstances of the case, he ought fairly to be excused for the breach or non-compliance, the court may relieve him, either wholly or partly, from his liability on such terms as the court thinks fit.

DIVISION II
INSIDERS

"Insider" defined

125(1)   In this section "insider" means, with respect to a corporation,

(a) the corporation;

(b) an affiliate of the corporation;

(c) a director or an officer of the corporation;

(d) a person who beneficially owns more than 10% of the shares of the corporation or who exercises control or direction over more than 10% of the votes attached to the shares of the corporation;

(e) a person employed or retained by the corporation; and

(f) a person who receives specific confidential information from a person described in this subsection or in subsection (3), including a person described in this clause, and who has knowledge that the person giving the information is a person described in this subsection or in subsection (3), including a person described in this clause.

Further interpretation

125(2)   For the purposes of this section, a director or officer of a body corporate that is an insider of a corporation is deemed to be an insider of the corporation.

Deemed insiders

125(3)   For the purposes of this section,

(a) if a body corporate becomes an insider of a corporation, or enters into a business combination with a corporation, a director or officer of the body corporate is deemed to have been an insider of the corporation for the previous six months or for such shorter period as he was a director or an officer of the body corporate; and

(b) if a corporation becomes an insider of a body corporate, or enters into a business combination with a body corporate, a director or an officer of the body corporate is deemed to have been an insider of the corporation for the previous six months or for such shorter period as he was a director or officer of the body corporate.