2nd Session, 36th Parliament,
48-49 Elizabeth II, 1999-2000

The Senate of Canada

BILL S-

An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-44; 1994, c. 24, s. 1(F)

CANADA BUSINESS CORPORATIONS ACT

1. (1) The definitions ``auditor'', ``person'' and ``unanimous shareholder agreement'' in subsection 2(1) of the Canada Business Corporations Act are replaced by the following:

``auditor''
« vérifica-
teur »

``auditor'' includes a partnership of auditors or an auditor that is incorporated ;

``person''
« personne »

``person'' means an individual, partnership, association, body corporate, or personal representative;

``unanimous shareholder agreement''
« convention unanime des actionnaires »

``unanimous shareholder agreement'' means an agreement described in subsection 146(1) or a declaration of a shareholder described in subsection 146(2) .

(2) The definition ``mandataire'' in subsection 2(1) of the French version of the Act is replaced by the following:

« mandataire »
French version only

« mandataire » S'entend notamment de l'ayant cause.

(3) Paragraph (c) of the definition ``associate'' in subsection 2(1) of the Act is replaced by the following:

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

(4) The portion of the definition ``associate'' in subsection 2(1) of the English version of the Act before paragraph (a) is replaced by the following:

``associate''
« liens »

``associate'', in respect of a relationship with a person, means

(5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

``distributing corporation''
« société ayant fait appel au public »

``distributing corporation'' means, subject to subsections (6) and (7), a distributing corporation as defined in the regulations;

``entity''
« entité »

``entity'' means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization;

``going-privat e transaction''
« opération de fermeture »

``going-private transaction'' means a going-private transaction as defined in the regulations;

``officer''
« dirigeant »

``officer'' means an individual appointed as an officer under section 121, the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of a corporation, or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any of those offices;

``personal representa-
tive''
« représen-
tant personnel »

``personal representative'' means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a receiver, an agent, a liquidator of a succession, a guardian, a tutor, a curator, a mandatary or an attorney;

``squeeze-out transaction''
« opération d'éviction »

``squeeze-out transaction'' means a transaction by a corporation that is not a distributing corporation that would require an amendment to its articles and would, directly or indirectly, result in the interest of a holder of shares of a class of the corporation being terminated without the consent of the holder, and without substituting an interest of equivalent value in shares issued by the corporation, which shares have equal or greater rights and privileges than the shares of the affected class;

(6) Subsection 2(4) of the French version of the Act is replaced by the following:

Personne morale mère

(4) Est la personne morale mère d'une personne morale celle qui la contrôle.

(7) Subsections 2(6) to (8) of the Act are replaced by the following:

Exemptions - on application by corporation

(6) On the application of a corporation, the Director may determine that the corporation is not or was not a distributing corporation if the Director is satisfied that the determination would not be prejudicial to the public interest .

Exemptions - classes of corporations

(7) The Director may determine that a class of corporations are not or were not distributing corporations if the Director is satisfied that the determination would not be prejudicial to the public interest.

1996, c. 10, s. 212; 1999, c. 31, s. 63

2. Subsection 3(3) of the French version of the Act is replaced by the following:

Non-applicati on de certaines lois

(3) Les lois suivantes ne s'appliquent pas à une société :

    a) la Loi sur les corporations canadiennes, chapitre C-32 des Statuts revisés du Canada de 1970;

    b) la Loi sur les liquidations et les restructurations;

    c) les dispositions de toute loi spéciale au sens de l'article 87 de la Loi sur les transports au Canada qui sont incompatibles avec la présente loi.

3. (1) The portion of subsection 6(1) of the Act before paragraph (a) is replaced by the following:

Articles of incorporation

6. (1) Articles of incorporation shall follow the form that the Director fixes and shall set out, in respect of the proposed corporation,

(2) Paragraph 6(1)(b) of the Act is replaced by the following:

    (b) the province in Canada where the registered office is to be situated;

4. Section 8 of the Act is replaced by the following:

Certificate of incorporation

8. (1) Subject to subsection (2) , on receipt of articles of incorporation, the Director shall issue a certificate of incorporation in accordance with section 262.

Exception - failure to comply with Act

(2) The Director may refuse to issue the certificate if a notice that is required to be given under subsection 19(2) or 106(1) indicates that the corporation, if it came into existence, would not be in compliance with this Act.

5. Subsection 10(3) of the Act is replaced by the following:

Alternate name

(3) Subject to subsection 12(1), the name of a corporation may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The corporation may use and may be legally designated by any such form.

6. Subsection 13(1) of the Act is replaced by the following:

Certificate of amendment

13. (1) When a corporation has had its name revoked and a name assigned to it under subsection 12(5), the Director shall issue a certificate of amendment showing the new name of the corporation and shall give notice of the change of name as soon as practicable in a publication generally available to the public.

7. (1) Subsection 14(1) of the Act is replaced by the following:

Personal liability

14. (1) Subject to this section, a person who enters into, or purports to enter 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 its benefits.

(2) Subsection 14(3) of the Act is replaced by the following:

Application to court

(3) Subject to 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 respecting the nature and extent of the obligations and liability under the contract of the corporation and the person who entered into , or purported to enter into , the contract in the name of or on behalf of the corporation. On the application, the court may make any order it thinks fit.

8. Section 18 of the Act is replaced by the following:

Authority of directors, officers and agents

18. (1) No corporation and no guarantor of an obligation of a corporation may assert against a person dealing with the corporation or against a person who acquired rights from the corporation that

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

    (b) the persons named in the most recent notice sent to the Director under section 106 or 113 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 a 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 a director, officer or agent;

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

    (f) a sale, lease or exchange of property referred to in subsection 189(3) was not authorized.

Exception

(2) Subsection (1) does not apply in respect of a person who has, or ought to have, knowledge of a situation described in that subsection by virtue of their relationship to the corporation.

9. Section 19 of the Act is replaced by the following:

Registered office

19. (1) A corporation shall at all times have a registered office in the province in Canada specified in its articles.

Notice of registered office

(2) A notice of registered office in the form that the Director fixes shall be sent to the Director together with any articles that designate or change the province where the registered office of the corporation is located .

Change of address

(3) The directors of a corporation may change the place and address of the registered office within the province specified in the articles.

Notice of change of address

(4) A corporation shall send to the Director, within fifteen days of any change of address of its registered office, a notice in the form that the Director fixes and the Director shall file it.

10. Subsection 20(5) of the Act is replaced by the following:

Records in Canada

(5) If accounting records of a corporation are kept outside Canada, accounting records adequate to enable the directors to ascertain the financial position of the corporation with reasonable accuracy on a quarterly basis shall be kept at the registered office or any other place in Canada designated by the directors .

When records or registers kept outside Canada

(5.1) Despite subsections (1) and (5), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a corporation may keep all or any of its corporate records and accounting records referred to in subsection (1) or (2) at a place outside Canada, if

    (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or any other place in Canada designated by the directors; and

    (b) the corporation provides the technical assistance to facilitate an inspection referred to in paragraph (a).

11. (1) Subsection 21(1) of the Act is replaced by the following:

Access to corporate records

21. (1) Subject to subsection (1.1) , shareholders and creditors of a corporation, their personal representatives and the Director may examine the records described in subsection 20(1) during the usual business hours of the corporation, and may take extracts from the records , free of charge, and, if the corporation is a distributing corporation, any other person may do so on payment of a reasonable fee.

Requirement for affidavit - securities register

(1.1) Any person described in subsection (1) who wishes to examine the securities register of a distributing corporation must first make a request to the corporation or its agent, accompanied by an affidavit referred to in subsection (7). On receipt of the affidavit, the corporation or its agent shall allow the applicant access to the securities register during the corporation's usual business hours, and, on payment of a reasonable fee, provide the applicant with an extract from the securities register.

(2) Subsection 21(3) of the Act is replaced by the following:

Shareholder lists

(3) Shareholders and creditors of a corporation, their personal representatives, the Director and, if the corporation is a distributing corporation, any other person, on payment of a reasonable fee and on sending to a corporation or its agent the affidavit referred to in subsection (7), may on application require the corporation or its agent to furnish within ten days after the receipt of the affidavit a list (in this section referred to as the ``basic list'') made up to a date not more than ten 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.

(3) Subsection 21(7) of the Act is replaced by the following:

Contents of affidavit

(7) The affidavit required under subsection (1.1) or (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) or the information contained in the securities register obtained pursuant to subsection (1.1), as the case may be , will not be used except as permitted under subsection (9).

(4) Subsection 21(8) of the French version of the Act is replaced by the following:

Cas où le requérant est une personne morale

(8) La personne morale requérante fait établir l'affidavit par un de ses administrateurs ou dirigeants.

(5) Subsection 21(9) of the Act is replaced by the following:

Use of information or shareholder list

(9) A list of shareholders or information from a securities register 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;

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

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

12. Section 23 of the Act is replaced by the following:

Corporate seal

23. (1) A corporation may, but need not, adopt a corporate seal, and may change a corporate seal that is adopted.