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C.C.S.M. c. C336
The Crown Corporations Governance and Accountability Act
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(Assented to June 2, 2017)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
DEFINITIONS AND APPLICATION
The following definitions apply in this Act.
"board" means the board of directors or other governing body of a corporation and includes a committee of the board or governing body. (« conseil d'administration »)
"corporation" means a corporation or other body to which this Act applies pursuant to section 2. (« corporation »)
"director" means a person designated by the legislation governing a corporation as a director, board member or commissioner and includes any other person who exercises powers similar to those of a director in relation to the corporation. (« administrateur »)
"fiscal year" means the fiscal year of a corporation. (« exercice »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"officer" means the chair or vice-chair of the board of directors, the chief executive officer, president, vice-president, secretary, treasurer, comptroller, general manager, managing director or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any such office. (« dirigeant »)
"prescribed" means prescribed by regulation.
"responsible minister" means, in relation to a particular corporation,
(a) the minister appointed by the Lieutenant Governor in Council to administer the Act under which the corporation is established or continued; or
(b) the minister designated by order of the Lieutenant Governor in Council, if the corporation is not established or continued under an Act. (« ministre responsable »)
Subject to the regulations, this Act applies to
(a) the Manitoba Centennial Centre Corporation;
(b) Manitoba Hydro;
(c) the Manitoba Liquor and Lotteries Corporation;
(d) The Manitoba Public Insurance Corporation; and
(e) a prescribed government agency.
Except where this Act or the regulations provide otherwise, the provisions of this Act and the regulations prevail to the extent of any inconsistency or conflict with another enactment.
A provision of an enactment that imposes duties on a board or confers powers on the responsible minister that is in addition to those imposed or conferred by this Act is not inconsistent or in conflict with this Act for the purpose of subsection (1).
ROLES, MANDATES AND DIRECTIVES
A corporation must, within three months of becoming subject to this section, have a roles and responsibilities record that is jointly developed by the corporation and the responsible minister.
A roles and responsibilities record must include a description of the following:
(a) the corporation's objects, mandate or purposes, as set out in the Act or instrument creating or continuing it;
(b) the roles and responsibilities of
(i) the corporation,
(ii) its board and its individual directors, including the chair,
(iii) its chief executive officer, or the person who is responsible for performing functions that are similar to those normally performed by the chief executive officer of a corporation,
(iv) the responsible minister,
(v) any department of government or statutory officer that provides support or services to the corporation, and
(vi) any subsidiaries of the corporation;
(c) the corporation's accountability relationships, including its duty to account to the responsible minister;
(d) the committee structure of the corporation's board, including the committees required under this Act, and the role and responsibility of any other committee established by the board;
(e) the corporation's planning and reporting requirements;
(f) the mutual expectations of the corporation and the responsible minister in respect of communications, collaboration and consultations with each other;
(g) any other prescribed matter.
A roles and responsibilities record may be amended at any time by the corporation and the responsible minister.
A roles and responsibilities record and any amendment made to it must be
(a) signed on behalf of the corporation by the chair of the corporation's board, the corporation's chief executive office and the responsible minister; and
(b) made public in accordance with section 9.
A roles and responsibilities record must be reviewed and renewed, amended, or replaced within three years after the day on which it was signed, or on which the most recent amendment to it was made.
The responsible minister, in consultation with the minister, if different from the responsible minister, may prepare a mandate letter for a corporation that sets out, for the term of the letter,
(a) the government's goals for the corporation;
(b) the specific outcomes to be achieved by the corporation during the applicable period;
(c) the performance measures that are to be used to determine if the specific outcomes have been achieved; and
(d) any other information that is prescribed or that the minister or responsible minister considers appropriate.
A mandate letter may be annual, or may apply to the particular fiscal years that are set out in the letter, which must not exceed three fiscal years.
A mandate letter must be consistent with the applicable corporation's objects, mandate or purposes.
A mandate letter is effective once it is
(a) signed by the directors and the responsible minister;
(b) approved by the Lieutenant Governor in Council; and
(c) made public in accordance with section 9.
For each fiscal year, a corporation must prepare an annual business plan that is acceptable to the responsible minister.
An annual business plan is to include
(a) the corporation's goals for the fiscal year covered by the plan;
(b) the specific outcomes to be achieved by the corporation during the applicable fiscal year including, in the case of a corporation that is subject to a mandate letter that applies to more than one fiscal year, the outcomes from the letter that are to be achieved within the fiscal year covered by the plan;
(c) a capital expenditure program for the prescribed period, which includes each proposed capital expenditure that exceeds the prescribed threshold during the period;
(d) the performance measures that are to be used to determine if the specific outcomes have been achieved; and
(e) any other information that is prescribed or that the responsible minister considers appropriate.
An annual business plan must take into account the financial resources of the corporation and must be consistent with
(a) any guidelines for annual business plans issued by the minister under section 8;
(b) the corporation's objects, mandate or purposes; and
(c) generally, any applicable mandate letter.
An annual business plan must be submitted to the responsible minister at the time directed by the responsible minister and must be approved by the board before the beginning of the fiscal year to which it relates.
The minister may issue guidelines respecting the form and content of annual business plans of corporations, which may be different for different corporations.
The minister must ensure that the following are made public within 30 days of being signed or approved:
(a) a roles and responsibilities record for a corporation, or any amendment to it;
(b) a mandate letter given to a corporation;
(c) an annual business plan of a corporation.
For the purpose of subsection (1), a document is made public if it is made available to the public in a reasonable manner, which may include making it available by electronic means.
Each corporation must, within four months after the end of the fiscal year of the corporation, make an annual report to the responsible minister on the operations of the corporation during the applicable fiscal year, which must include
(a) the audited financial statements of the corporation;
(b) a comparison of the actual results for the fiscal year with the specific outcomes to be achieved by the corporation, as set out in corporation's annual business plan for that year;
(c) if there is a variance between the actual results and the specific outcomes for the fiscal year, an explanation for the variance; and
(d) any other information that the Lieutenant Governor in Council may request.
The responsible minister must table a copy of each annual report referred to in subsection (1) in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.
When an annual report of a corporation is laid before the Legislative Assembly, the annual report, subject to any other Act, stands permanently referred to the Standing Committee on Crown Corporations of the Legislative Assembly unless the Assembly otherwise orders.
In addition to its annual report, for the first three quarters in its fiscal year, a corporation must ensure that financial statements showing the financial condition of the corporation
(a) are prepared, within 45 days of the end of the quarter; and
(i) given to the responsible minister, and
(ii) made available to the public in a reasonable manner, which may include making them available by electronic means.
The minister must prepare and make public, in the manner he or she determines reasonable, a written statement giving reasons if
(a) a document described in subsection 9(1) is not made public within the 30 days;
(b) an annual report is not tabled in the Assembly within the time specified in subsection 10(1);
(c) a quarterly financial statement in not available to the public within the time specified in section 11;
(d) a document or annual report does not include the required information or present the information in the required manner; or
(e) in the case of an annual business plan, the form and content of the plan does not comply with any guidelines issued under section 8.
The minister may — with the approval of the Lieutenant Governor in Council — issue a directive to a corporation
(i) matters of policy and the accounting policies and practices for the corporation,
(ii) standards to be complied with in respect of advertising done by the corporation, and
(iii) the conduct of special organizational reviews to be conducted by the corporation;
(b) to ensure that practices of two or more corporations are consistent; and
(c) to ensure that two or more corporations act in concert with each other or with government departments or agencies when doing so will further efficiency and effectiveness.
A directive in respect of accounting policies and practices must be consistent with generally accepted accounting principles that reflect the public interest.
A corporation must comply with a directive given under this section.
The minister must make a directive public, in a manner he or she determines reasonable, within 30 days of the directive being given to the corporation.
The responsible minister or the minister may request from a corporation any information, including personal information as defined in The Freedom of Information and Protection of Privacy Act, that the particular minister considers necessary concerning the activities and operations of the corporation or that is considered necessary for the development, establishment, amendment, termination or repeal of an enactment, program, guideline, policy or directive, and the corporation must disclose the information within the time and in the form and manner determined by that minister.
Under subsection (1), a minister
(a) must not request or collect personal information if other information will serve the purpose; and
(b) must limit the amount of requested or collected personal information to the minimum amount necessary to accomplish the purpose for which it is requested or collected.
A minister who collects information under this section, including personal information, must protect the information by adopting reasonable administrative, technical and physical safeguards that ensure the confidentiality, security, accuracy and integrity of the information.
In determining the reasonableness of security safeguards adopted under subsection (3), the degree of sensitivity of the information to be protected must be taken into account.
The minister may
(a) request the corporation to provide reports to the minister at any time on matters considered by the minister likely to have a material effect on the performance of the corporation;
(b) request the auditor of a corporation at any reasonable time to provide reports to the minister on any matter related to the finances of the corporation and have access to any other report issued by that auditor with respect to the corporation;
(c) request the auditor of a corporation to undertake additional audits or other work in relation to that corporation and to report on that audit or other work to the minister or request any other person to investigate and report to the minister on any matter with respect to a corporation.
Expenses incurred by a corporation or its auditor as a result of a request made by the minister are to be paid for by the corporation.
The minister may charge each corporation an amount, which may be different for different corporations, that the minister considers appropriate to recover the amounts that the government budgets specifically for the administration of this Act, and a corporation must pay the amount charged to the Minister of Finance for deposit into the Consolidated Fund, at the time and in the manner directed by the minister.
Subject to specific requirements or restrictions contained in the Act by or under which a corporation is established and to this Act, a board shall
(a) exercise the powers of the corporation directly or indirectly through the employees and agents of the corporation;
(b) direct the management of the business and affairs of the corporation;
(c) ensure that the corporation complies with the corporation's mandate and the laws of the Province of Manitoba; and
(d) for the purpose of explaining the objects, mandate or purposes of the corporation, ensure that the senior management of the corporation hold a public meeting at least once in each year in Winnipeg and at least two other centres, including one in northern Manitoba and one elsewhere in Manitoba, as determined by the board.
Every board must develop and adopt guidelines respecting conflicts of interest for employees of the corporation in accordance with general guidelines developed by the minister.
Each board is responsible to its responsible minister.
The chair of a board must, immediately after every meeting of the board and in a form acceptable to the minister, forward to the responsible minister a description of the business transacted at the meeting together with the supporting material for every decision recorded in the minutes of the meeting.
Despite any other Act, no member of the Executive Council shall be appointed as chair, vice-chair or member of any board.
Subject to specific requirements or restrictions contained in the Act by or under which a corporation is established and to this Act, a board may make any by-laws for the corporation, not contrary to law or this Act, that the board considers necessary or advisable for the conduct of the business and affairs of the corporation including, without limitation, by-laws with respect to the time and place of the calling and holding of all meetings of the board and the procedure at such meetings.
A board may establish any committees of the board that it considers necessary and shall establish an audit committee as required by subsection 21(1) and a planning committee to review and evaluate the corporate plans and to make any recommendations to the board in relation to those plans that the committee considers appropriate.
Every director and officer of a corporation in exercising his or her powers and discharging his or her duties shall
(a) act honestly and in good faith with a view to the best interests of the corporation;
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; and
(c) comply with this Act, the Act by or under which the corporation is established and any by-laws of the corporation.
A director or officer of a corporation is not liable for a breach of duty under subsection (1) if the director or officer relies in good faith on
(a) financial statements of the corporation represented to him or to her by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or
(b) a report of a lawyer, accountant, engineer, appraiser or other person whose position or profession lends credibility to a statement made by him or her.
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 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 a board meeting the nature and extent of the interest.
The disclosure required by subsection (1) shall be made, in the case of a director,
(a) at the meeting of the board at which the proposed contract is first considered;
(b) if the director was not then interested in the proposed contract, at the first meeting of the board after he or she becomes so interested;
(c) if the director becomes interested after the contract is made, at the first meeting of the board after he or she becomes so interested; or
(d) if a person who is interested in the contract later becomes a director, at the first meeting of the board after he or she becomes a director.
The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director, as soon as reasonably practicable,
(a) after the officer becomes aware that the contract or proposed contract is to be considered or has been considered at a meeting of the board;
(b) if the officer becomes interested after the contract is made, after he or she becomes so interested; or
(c) if a person who is interested in the contract later becomes an officer, after he or she becomes an officer.
If a material contract or proposed material contract is one that, in the ordinary course of the business or activity of the corporation, would not require approval by the board, a director or officer shall disclose in writing to the corporation or request to have entered in the minutes of a board meeting the nature and extent of his or her interest as soon as reasonably practicable after the director or officer becomes aware of the contract or proposed contract.
A director referred to in subsection (1) shall not vote on any resolution to approve the contract unless the contract is
(a) an arrangement by way of security for money lent to or obligations undertaken by the director for the benefit of the corporation or a subsidiary of the corporation;
(b) one relating primarily to remuneration or benefits as a director, officer, employee or agent of the corporation or a subsidiary of the corporation; or
(c) one with another Crown corporation.
A director referred to in subsection (1) who is prohibited from voting on any resolution to approve a contract shall withdraw from any meeting during any discussion of such a resolution.
For the purposes of this section, a general notice in writing to the board by a director or officer declaring that the director or officer 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.
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 or she 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 the board that authorized the contract, if the director or officer disclosed the interest in accordance with subsection (2), (3), (4) or (7), as the case may be, and the contract was approved by the board and it was reasonable and fair to the corporation at the time it was approved.
Where a director or officer of a corporation fails to disclose an interest in a material contract in accordance with this section, the Court of Queen's Bench may, on application of the corporation or on behalf of the Crown, set aside the contract on any terms that the court considers appropriate.
Every board shall establish an audit committee, a majority of whom shall be directors.
The audit committee shall
(a) review and advise the board with respect to the financial statements that are to be included in the annual report of the corporation;
(b) review and advise the board with respect to the annual auditor's report of the corporation;
(c) review and approve the retention and mandate of the internal auditor of the corporation;
(d) review the corporation's annual internal audit plans;
(e) periodically arrange and participate in meetings with the internal auditor and the Auditor General to review the results of internal audit practices of the corporation; and
(f) perform any other functions that are assigned to it by the board and the by-laws of the corporation.
The auditor of a corporation is entitled to receive notice of every meeting of the audit committee and, at the expense of the corporation, to attend and be heard at the meeting and, if so requested by a member of the audit committee, the auditor shall attend any or every meeting of the committee held during the term of office of the auditor.
The auditor of a corporation or a member of the audit committee may call a meeting of the audit committee.
A director of a corporation is not liable or answerable for any debt, liability or obligation of the corporation or for any act, error or omission of the corporation or of any of its officers, employees or agents.
The directors and the officers and employees of a corporation and any person acting under the instructions of any of them or under the authority of this Act or an order made under this Act are not personally liable for any loss or damage suffered by any person by reason of anything done, caused, permitted or authorized to be done by them in good faith and without negligence in the course of the administration of this Act or in the exercise of the powers given by this Act.
Despite section 3, this section does not affect a debt, liability or obligation of a director, officer or employee that is created by any other Act.
In appointing directors of a corporation, the Lieutenant Governor in Council
(a) shall appoint the chief executive officer of the corporation as an ex officio, non-voting member of the board of the corporation; and
(b) may appoint persons who are employed by the corporation and who, in the opinion of the responsible minister, are qualified to serve as directors, to be members of the board of the corporation.
Every board shall, immediately on the coming into force of this section or as soon as possible after being made subject to this section pursuant to clause 2(e), provide by way of its by-laws for the appointment of a committee involving management and employees of the corporation to
(a) promote the exchange of information and ideas between the corporation and the employees;
(b) discuss ways and means of improving the delivery of services by the corporation to the public;
(c) consider corporate policies as they affect employees; and
(d) consider methods to improve the operation of the corporation.
The activities of a committee described in subsection (1) shall not include collective bargaining within the meaning of The Labour Relations Act.
PUBLIC UTILITIES BOARD REVIEW OF RATES
Despite any other Act or law, rates for services provided by Manitoba Hydro and the Manitoba Public Insurance Corporation shall be reviewed by The Public Utilities Board under The Public Utilities Board Act and no change in rates for services shall be made and no new rates for services shall be introduced without the approval of The Public Utilities Board.
For the purposes of this Part, "rates for services" means
(a) in the case of Manitoba Hydro, prices charged by that corporation with respect to the provision of power as defined in The Manitoba Hydro Act; and
(b) in the case of The Manitoba Public Insurance Corporation, rate bases and premiums charged with respect to compulsory driver and vehicle insurance provided by that corporation.
The Public Utilities Board Act applies with any necessary changes to a review pursuant to this Part of rates for services.
In reaching a decision pursuant to this Part, The Public Utilities Board may
(a) take into consideration
(i) the amount required to provide sufficient funds to cover operating, maintenance and administration expenses of the corporation,
(ii) interest and expenses on debt incurred for the purposes of the corporation by the government,
(iii) interest on debt incurred by the corporation,
(iv) reserves for replacement, renewal and obsolescence of works of the corporation,
(v) any other reserves that are necessary for the maintenance, operation, and replacement of works of the corporation,
(vi) liabilities of the corporation for pension benefits and other employee benefit programs,
(vii) any other payments that are required to be made out of the revenue of the corporation,
(viii) any compelling policy considerations that the board considers relevant to the matter, and
(ix) any other factors that the Board considers relevant to the matter; and
(b) hear submissions from any persons or groups or classes of persons or groups who, in the opinion of the Board, have an interest in the matter.
In the case of a review pursuant to this Part of rates for services of the Manitoba Public Insurance Corporation, The Public Utilities Board may take into consideration, in addition to factors described in subsection (4), all elements of insurance coverage affecting insurance rates.
In conducting a review under this Part of rates for services of Manitoba Hydro, The Public Utilities Board must take into consideration, in addition to the factors described in subsection (4), the costs to be incurred by Manitoba Hydro in respect of Efficiency Manitoba, as required under The Efficiency Manitoba Act.
A corporation may submit for the approval of The Public Utilities Board pursuant to this Part proposals regarding rates for services relating to a period of not more than three years and the Board shall identify in its order the change approved, if any, with respect to each year.
No corporation shall increase rates for services by an amount in any year that exceeds the amount approved for that year by The Public Utilities Board or introduce new rates for services in any year other than new rates for services approved for introduction in that year by The Public Utilities Board.
Where The Public Utilities Board is satisfied that the circumstances of a corporation have changed substantially, The Public Utilities Board may, of its own motion or on the application of the corporation or an interested person, review an order made pursuant to this section and modify the order in any manner that The Public Utilities Board considers reasonable and justified in the circumstances.
When a new rate for services or an increased rate is allowed pursuant to an interim order and a final order does not allow any changes or allows changes other than those permitted in the interim order, The Public Utilities Board may make any order to compensate for or to refund any excess amounts collected by the corporation that it considers necessary and appropriate in the circumstances.
Despite any other Act or the by-laws of any corporation, the fiscal year of a corporation to which this Act applies shall end on the day in each year as may be fixed by the Lieutenant Governor in Council and where the Lieutenant Governor in Council does so the Act or the by-laws, as the case may be, shall be deemed to be amended to give effect to the order of the Lieutenant Governor in Council.
The Lieutenant Governor in Council may make regulations
(a) prescribing a government agency, as defined in The Financial Administration Act, to be a corporation for the purposes of clause 2(e);
(b) prescribing matters that are to be addressed in a corporation's roles and responsibilities record, mandate letter or annual business plan, which may be different for different corporations;
(c) prescribing the period to be, and thresholds for when capital expenditures must be, included in a corporation's capital expenditure program, which may be different for different corporations;
(d) exempting a corporation from a provision of this Act;
(e) imposing terms and conditions on an exemption under clause (d);
(f) defining any word or phrase used but not defined in this Act;
(g) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.
TRANSITIONAL AND CONSEQUENTIAL AMENDMENTS
On the coming into force of this Act,
(a) the council — being the Crown Corporations Council as provided for in The Crown Corporations Public Review and Accountability Act, as that Act read immediately before the coming into force of this Act — is dissolved;
(b) the appointments of the members of the council are terminated, and all rights and obligations of the members in relation to or under those appointments are extinguished;
(c) the rights and property of the council are vested in the government; and
(d) all liabilities and obligations of the council are assumed by the government.
NOTE: These sections contained consequential amendments to other Acts, which amendments are now included in those Acts.
REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE
The Crown Corporations Public Review and Accountability Act, S.M. 1988-89, c. 23, is repealed.
This Act may be referred to as chapter C336 of the Continuing Consolidation of the Statutes of Manitoba.
Subject to subsection (2), this Act comes into force on the day it receives royal assent.
Subsection 25(6) comes into force on the same day that Bill 19 of the Second Session of the 41st Legislature, titled The Efficiency Manitoba Act, comes into force.
Subsection 25(6) came into force on January 25, 2018.
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