Date: June 10, 2004
R.S.M. 1990, c. 222
The Winnipeg Foundation Act
WHEREAS The Winnipeg Foundation was incorporated by an Act to incorporate The Winnipeg Foundation being Chapter 165 of the Statutes of Manitoba, 1921, and was continued by An Act respecting "The Winnipeg Foundation" being Chapter 52 of the Statutes of Manitoba, 1943;
AND WHEREAS the said Acts were amended by other Acts of the Legislature;
AND WHEREAS The Winnipeg Foundation, by its petition, prayed that the Acts relating to The Winnipeg Foundation be revised;
AND WHEREAS their prayer was granted and resulted in the enactment of The Winnipeg Foundation Act, assented to July 9, 1980;
AND WHEREAS the first members of the Board of The Winnipeg Foundation were the following persons, namely: Mr. Justice Gordon C. Hall, Robert G. Graham, James A. Hillman, David S. Kaufman, Robert P. Purves, Kathleen Richardson, and William Norrie, Q.C. as mayor of the City of Winnipeg;
AND WHEREAS the Minister of Justice has caused the Act to be prepared in English and French and re-enacted in accordance with a judgment dated June 13, 1985 and an order dated November 4, 1985 of the Supreme Court of Canada;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"appointors" means those persons provided with a power of appointment under section 4; (« auteurs de désignations »)
"Board" means the Board of Directors appointed pursuant to section 4; (« conseil »)
"Custodian" means a trust company appointed under section 6 by the Foundation to have custody of property of the Foundation; (« gardien »)
"donation" includes any gift, testamentary disposition, deed of trust or other form of contribution; (« donation »)
"Foundation" means "The Winnipeg Foundation"; (« Fondation »)
"Fund" means the Consolidated Trust Fund established under section 8; (« Fonds »)
"property" includes real and personal property. (« biens »)
The Foundation as constituted prior to the coming into force of this Act is hereby continued as a corporation.
The Foundation shall be composed of the members for the time being of the Board.
The objects of the Foundation are,
(a) to provide care for needy men, women and children, and in particular for the sick, aged, destitute and helpless;
(b) to promote the betterment of underprivileged or delinquent persons;
(c) to promote educational advancement or scientific research for the increase of human knowledge and the alleviation of human suffering;
(d) to promote the conservation of human, natural and heritage resources; and
(e) to provide for such other charitable, educational, or cultural purposes that, in the opinion of the Board, are desirable;
and are intended to benefit primarily the inhabitants of The City of Winnipeg as now or hereafter constituted.
The Foundation shall not make grants for the benefit of persons resident outside the Province of Manitoba except in compliance with the specific direction of a donor.
The persons who from time to time hold the following offices: the Lieutenant Governor of the Province of Manitoba, the Chief Justice of Manitoba, the Chief Justice of the Court of Queen's Bench for Manitoba, the Mayor of The City of Winnipeg, and the Registrar General of Manitoba, or a majority of them in joint session shall appoint members of the Board.
The Board shall consist of not less than five or more than nine members.
The Mayor of The City of Winnipeg shall, by virtue of his office, be a member of the Board.
All members of the Board shall be residents of the province.
Each appointor is eligible to be appointed as a member of the Board.
The term of office of the members of the Board shall be determined by the appointors but shall be not less than two years or more than five years.
Vacancies on the Board, however created, shall from time to time be filled for the unexpired term by the appointors or by a majority of them in joint session.
The Foundation may
(a) receive donations of and hold, control and administer property of every kind and description, and wheresoever situated;
(b) if not in contravention of an express term of the donation under which it is received, convert any property at any time or from time to time received or held by the Foundation, into any other form, and for such purpose sell, dispose of, assign, transfer, lease, or exchange the property;
(c) entrust to a trust company, the custody of all or any portion of the property at any time or from time to time received or held by the Foundation, in such manner and in such portions as the Board may direct, and enter into agreements with the companies with regard thereto;
(d) lease any lands at any time held by the Foundation;
(e) pay the expenses of administering the Foundation.
As soon as practicable after a donation has been received and becomes operative, the Foundation shall appoint a trust company to have the custody of the property other than money included in the donation, or such portion thereof as may be allotted to that trust company by the Board.
In making an appointment under subsection (1) of a Custodian of the property included in a donation, consideration shall be given to any wish expressed by the donor.
Each trust company appointed as a Custodian under subsection (1) shall be one which is authorized to act as an executor and administrator within the province.
The Foundation may at any time by resolution revoke the appointment of any trust company as a Custodian and appoint another trust company as a new Custodian.
Each trust company during its continuance in office as a Custodian for the Foundation shall
(a) give effect to and observe all directions given to it by the Board with respect to any property entrusted to it by the Foundation;
(b) distribute from the moneys in its possession, such sums in such manner as the Board may at any time or from time to time by resolution direct; and
(c) give full information and permit the necessary inspections required for the audit provided for by section 17.
Subject to any specific direction by a donor or a judge of the Court of Queen's Bench, the Foundation shall invest its funds and other property, and the funds and property entrusted to it in properties or securities in which life insurance companies are permitted to invest their funds under the Canadian and British Insurance Companies Act (Canada).
Notwithstanding anything contained in this Act or any other Act of the Legislature, the Foundation may establish a Consolidated Trust Fund in which property received by the Foundation by way of separate donations is combined for the purposes of facilitating investment.
The Board may make regulations from time to time concerning
(a) the operation of the Fund;
(b) the method of valuation of investments in the Fund, and the date upon which the valuation may be made;
(c) the distribution of the income of the Fund;
(d) the property that may be included in the Fund.
A direction in writing by a donor that property included in a donation shall not be included in the Fund is binding on the Board.
The Board may use and distribute all or such portion of income of the foundation as the Board deems proper for such purposes consistent with the Foundation's objects as the Board may determine.
In each year the income of the Foundation to be distributed shall be used for the assistance of institutions, organizations, agencies, and bodies, engaged in the promotion or advancement of the objects of the Foundation or any of them, and the Board shall determine which institutions, organizations, agencies or bodies, are to benefit by that assistance and to what extent.
Subject to subsection (4), all powers, authority, and discretion, that under this section are exercisable by the Board, may be exercised in the full and absolute discretion of the Board.
The Board, in deciding the manner in which income shall be used or applied, shall be governed by any particular wish that may be expressed by the donor in the instrument by which property is donated to the Foundation.
If, in the course of time and after the death of such donor, or, if the donor be a corporation, after the dissolution thereof, conditions arise whereby in the opinion of the Board the departure from a wish of a donor as to the use or application of property donated to the Foundation or the income therefrom, would further the objects of this Act, the Board may make such a departure to the extent necessary to further the true intent and purpose of this Act.
The Board may appoint such officers and engage such employees at such salaries or for such remuneration as the Board deems proper and necessary, and may incur expenditures incidental to the conduct of the affairs of the Foundation in carrying out its objects as the Board thinks requisite.
The Board by a Special Resolution may make, amend and repeal by-laws not inconsistent with this Act to provide for the management of the property and affairs of the Foundation.
Any form of words shall be sufficient to constitute a donation for the purposes of this Act so long as the donor indicates an intention to contribute presently or prospectively into a fund or foundation of the general character indicated in this Act.
This Act is to be construed liberally to the end that the Courts of Manitoba may assist in making or effecting gifts for charitable purposes and may, in case of any failure on the part of the Foundation or those entrusted with the powers of appointing the Board, or otherwise howsoever, do what may be necessary to carry out the true intent and purpose of this Act.
Where any person holds any property in trust for any charitable, educational or cultural purpose, or for the benefit of any institution or class or group of persons, or for any purpose of a nature similar to the objects for which the income of the Foundation may be used under this Act, and by reason of the object of the trust having ceased to exist or the trust for any cause having become incapable of performance, or for any other reason the trust cannot be further administered, the person may upon notice to the Foundation, apply to the Court of Queen's Bench of Manitoba, for an order directing him to hand the property over to the Foundation to be used for such charitable, educational or cultural purposes as the Court may stipulate by order, or otherwise, to be used by the Foundation in the same manner and for the same purposes as other donations which may be made to the Foundation; and the said Court may order the property or any part of it to be handed over to the Foundation as may then appear proper and a trustee complying with the order is relieved and discharged of all further responsibility in respect of property so handed over pursuant to the order.
Where the property has been donated to the Foundation and the donor is desirous that all or a part of the income derivable therefrom shall be distributed for purposes consistent with the Foundation's objects for the benefit of persons living outside of Winnipeg or Manitoba and so indicates in the instrument by which the property was donated, the Board may accept the property and give effect to the desires of the donor in respect of the distribution.
Where a donation has been made to the Foundation in trust of any property to take effect in the future, the Board may accept and exercise any powers of appointment, settlement or distribution with respect to the income in whole or in part derivable from the property until the donation takes effect.
The Board shall cause an audit of the financial transactions of the Foundation to be made at least once in every fiscal year by a person independent of the Foundation who is a member in good standing of a professional accounting body incorporated in the province, and shall publish the auditor's reports.
Any gift, devise, bequest, legacy, transfer, assignment or other disposition of property which is made to The University of Manitoba Foundation is transferred to and vested in The Winnipeg Foundation without further act, conveyance, or other deed to be used by The Winnipeg Foundation in accordance with the following objects:
(a) to receive and hold by gift, bequest, devise, grant, purchase or exchange, any property, to use and dispose of the same for the purposes of the Foundation, subject, however, to any terms, conditions, directions or trusts contained in the instrument by which the property is granted, conveyed or assured to the Foundation;
(b) to take, hold and administer any securities, funds or property which are, at any time, transferred, given, devised or bequeathed to the Foundation by any person, for the purposes and objects of the Foundation, and the Foundation shall have power, in its discretion, to hold, as investments, any securities which are transferred to it by any person;
(c) to invest any funds of the Foundation in any securities in which a trustee or trust company may invest trust moneys under the laws of the Province of Manitoba, or in which life insurance companies are permitted to invest their funds under the Canadian and British Insurance Companies Act (Canada);
(d) to apply and expend the income from any property of the Foundation to any purposes or objects connected with the University of Manitoba. Without restricting the generality of the foregoing, the terms "purposes" and "objects" shall include the purchase of land, the erection and furnishings of buildings, the provision of scholarships, fellowships and prizes, the equipment and maintenance of libraries and laboratories, the provision of bursaries for research in any department of university work, and the construction, equipment and maintenance of auditoriums, gymnasiums and athletic grounds; and
(e) to withdraw and expend for any purposes or objects of the Foundation an amount or amounts not exceeding 20% of the principal funds of the Foundation in trust for specific purposes, provided that when 20% of such principal funds has been withdrawn and expended, no further withdrawals or expenditures of principal funds may be made until such principal funds have been so augmented as to be not less in amount than the highest previous value thereof.
The Corporations Act does not apply to the Foundation.
NOTE: This Act replaces S.M. 1980, c. 98.