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Bill S-11

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PART 18.1

APPORTIONING AWARD OF DAMAGES

Interpretation and Application

Definitions

337.1 The definitions in this section apply in this Part.

``financial interest''
« intérêt financier »

``financial interest'', with respect to a cooperative, includes

      (a) a security;

      (b) a title to or an interest in capital, assets, property, profits, earnings or royalties;

      (c) an option or other interest in, or a subscription to, a security;

      (d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets;

      (e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the cooperative;

      (f) a profit-sharing agreement or certificate;

      (g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty;

      (h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province;

      (i) an investment contract; and

      (j) anything that is prescribed to be a financial interest.

``financial loss''
« perte financière »

``financial loss'' means a financial loss arising out of an error, omission or misstatement in financial information concerning a cooperative that is required under this Act or the regulations.

``third party''
Version anglaise seulement

``third party'' includes any subsequent party that is joined in proceedings before a court.

Application of Part

337.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss.

Non-applica-
tion of Part

(2) This Part does not apply to an award of damages to any of the following plaintiffs:

    (a) Her Majesty in right of Canada or of a province;

    (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments;

    (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or

    (d) an unsecured creditor in respect of goods or services that the creditor provided to a cooperative.

Apportionment of Damages

Degree of responsibility

337.3 (1) Subject to this section and sections 337.4 to 337.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss.

Uncollectable amounts

(2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable.

Reallocation

(3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss.

Maximum amount

(4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.

Exception - fraud

337.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly.

Contribution

(2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss.

Joint and Several, or Solidary, Liability

Individual or personal body corporate

337.5 (1) Defendants and third parties referred to in subsection 337.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who

    (a) had a financial interest in a cooperative on the day that an error, omission or misstatement in financial information concerning the cooperative occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and

    (b) has established that the value of the plaintiff's total financial interest in the cooperative was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph (a).

Definition of ``personal body corporate''

(2) In subsection (1), ``personal body corporate'' means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.

Exception

(3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.

Equitable grounds

337.6 (1) If the value of the plaintiff's total financial interest referred to in subsection 337.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so.

Factors

(2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable.

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Value of security

337.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 337.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3),

    (a) the closing price of that class of security;

    (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or

    (c) if the security was not traded, the average of the bid and ask prices of that class of security.

Court may adjust value

(2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so.

Valuation day

(3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired.

Definition of ``organized market''

(4) In this section, ``organized market'' means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.

Court determines value

337.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market.

Factors

(2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1).

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Application to determine value

337.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff's financial interest for the purpose of subsection 337.5(1).

215. The definition ``complainant'' in section 338 of the Act is amended by adding the word ``or'' at the end of paragraph (c) and by repealing paragraph (d).

216. Paragraph 339(2)(a) of the Act is replaced by the following:

    (a) if the directors of the cooperative or its subsidiary do not bring, diligently prosecute, defend or discontinue the action, the complainant has given notice to the directors of the cooperative or its subsidiary of the complainant's intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court ;

217. The portion of subsection 340(2) of the French version of the Act before paragraph (a) is replaced by the following:

Motifs

(2) Le tribunal, saisi d'une demande visée au paragraphe (1), peut, par ordonnance, redresser la situation provoquée par la coopérative qui, à son avis, abuse des droits des membres ou autres détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants de la coopérative, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :

218. Paragraphs 345(c) and (d) of the Act are replaced by the following:

    (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations;

    (d) to refuse to issue a certificate of discontinuance or a certificate attesting that as of a certain date the cooperative exists under section 375 ;

    (d.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 376.1;

    (d.2) to cancel, or to refuse to cancel, the articles and related certificate under section 376.2;

219. The Act is amended by adding the following after section 361:

PART 21.1

DOCUMENTS IN ELECTRONIC OR OTHER FORM

Definitions

361.1 The definitions in this section apply in this Part.

``electronic document''
« document électroni-
que »

``electronic document'' means, except in section 361.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means.

``information system''
« système d'information »

``information system'' means a system used to generate, send, receive, store or otherwise process an electronic document.

Application

361.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.

Use not mandatory

361.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document.

Consent and other requirements

(2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless

    (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and

    (b) the electronic document is provided to the designated information system, unless otherwise prescribed.

Revocation of consent

(3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.

Creation and provision of information

361.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided is satisfied by the creation or provision of an electronic document if

    (a) the by-laws or the articles of the cooperative do not provide otherwise; and

    (b) the regulations, if any, have been complied with.

Creation of information in writing

361.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 361.4,

    (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and

    (b) the regulations pertaining to this subsection, if any, have been complied with.

Provision of information in writing

(2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 361.4,

    (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and

    (b) the regulations pertaining to this subsection, if any, have been complied with.

Copies

(3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document.

Registered mail

(4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.

Statutory declarations and affidavits

361.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if

    (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature;

    (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and

    (c) the requirements of sections 361.3 to 361.5 are complied with.

Definitions

(2) For the purposes of this section, ``electronic document'' and ``secure electronic signature'' have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

Clarification

(3) For the purpose of complying with paragraph (1)(c), the references to an ``electronic document'' in sections 361.3 to 361.5 are to be read as references to an ``electronic document'' as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

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