Assented to 2009-06-23
An Act respecting not-for-profit corporations and certain other corporations
This enactment establishes a framework for the governance of not-for-profit corporations and other corporations without share capital, mainly based on the Canada Business Corporations Act.
The enactment replaces the “letters patent” system of incorporation by an “as of right” system of incorporation. The current requirement for ministerial review of letters patent and by-laws prior to incorporation is replaced by the granting of incorporation upon the sending of required information and payment of a fee.
The enactment provides for modern corporate governance standards, including the rights, powers, duties and liabilities of directors and officers, along with related defences, and financial accountability and disclosure requirements.
The enactment sets out the capacity and powers of a corporation as a natural person, including its right to buy and sell property, make investments, borrow funds and issue debt obligations.
The enactment sets out the rights of members, including the right to vote at a meeting of members, call a special meeting of members, advance proposals for consideration at meetings of members and access corporate records.
The enactment provides requirements for financial review by a public accountant and financial disclosure based on whether a corporation has solicited funds and its level of annual revenue.
The enactment gives the Director powers of administration, including the power to make inquiries related to compliance and to access key corporate documents such as financial statements and membership lists.
The enactment includes remedies for members and other interested persons to address the conduct of a corporation that is oppressive or unfairly prejudicial to or unfairly disregards the interests of any creditor, director, officer or member.
The enactment provides procedures for the amalgamation, continuance, liquidation and dissolution of a corporation and other fundamental corporate changes. The continuance provisions govern the continuance of bodies incorporated under other Acts and provide a power for the Governor in Council to require a federal body corporate without share capital to apply for continuance under the enactment or be dissolved.
The enactment modernizes the legal regime that applies to corporations without share capital created by special Acts of Parliament by providing that those corporations are natural persons, requiring the holding of an annual meeting and the sending of an annual return, and regulating a change of a corporation’s name and its dissolution.
The enactment gives corporations with share capital created by special Acts of Parliament and subject to Part IV of the Canada Corporations Act six months to apply for continuance under the Canada Business Corporations Act or be dissolved.
The enactment makes a number of consequential amendments to other federal Acts. It provides for a phased repeal of the Canada Corporations Act as corporations cease being subject to the Parts of that Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Marginal note:Short title
PART 1INTERPRETATION AND APPLICATION
2. (1) The following definitions apply in this Act.
« activité »
“activities” includes any conduct of a corporation to further its purpose and any business carried on by a body corporate, but does not include the affairs of a body corporate.
« affaires internes »
“affairs” means the relationships among a corporation, its affiliates and the directors, officers, shareholders or members of those bodies corporate.
« statuts »
“articles” means original or restated articles of incorporation or articles of amendment, amalgamation, continuance, reorganization, arrangement, dissolution or revival.
« personne morale »
“body corporate” includes a company or other organization with legal personality wherever or however incorporated.
« organisation »
“corporation” means a body corporate incorporated or continued under this Act and not discontinued under this Act.
« tribunal »
(a) in Newfoundland and Labrador and Prince Edward Island, the trial division of the Supreme Court of the province;
(b) in Ontario, the Superior Court of Justice;
(c) in Nova Scotia and British Columbia, the Supreme Court of the province;
(d) in Manitoba, Saskatchewan, Alberta and New Brunswick, the Court of Queen’s Bench for the province;
(e) in Quebec, the Superior Court of the province; and
(f) in Yukon and the Northwest Territories, the Supreme Court of the territory, and in Nunavut, the Nunavut Court of Justice.
« créancier »
“creditor” includes a debt obligation holder.
« titre de créance »
“debt obligation” means a bond, debenture, note or other evidence of indebtedness or guarantee of a corporation, whether secured or unsecured.
« directeur »
“Director” means an individual appointed under section 281.
« administrateur »
“director” means an individual occupying the position of director by whatever name called.
« entité »
“entity” means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization.
« fondateur »
“incorporator” means a person who signs articles of incorporation.
« émetteur »
“issuer” means a corporation that is required by this Act to maintain a debt obligations register.
« dirigeant »
“officer” means an individual appointed as an officer under section 142, the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager or 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.
« ordinaire »
“ordinary resolution” means a resolution passed by a majority of the votes cast on that resolution.
« personne »
“person” means an individual or entity.
« représentant personnel »
“personal representative” means a person who stands in place of and represents another person, including a trustee, an executor, an administrator, a receiver, an agent, a mandatary, a liquidator of a succession, a guardian, a tutor, a curator or a legal counsel.
“prescribed”Version anglaise seulement
“prescribed” means prescribed by the regulations.
« expert-comptable »
“public accountant”, in respect of a corporation, means the public accountant appointed for the corporation under paragraph 127(1)(e) or subsection 181(1) or 186(1) or who fills a vacancy under subsection 184(2) or 185(1).
« envoyer »
“send” includes deliver.
« série »
“series” means a division of a class of debt obligations.
« organisation ayant recours à la sollicitation »
“soliciting corporation” means a corporation that is referred to in subsection (5.1).
« extraordinaire »
“special resolution” means a resolution passed by a majority of not less than two thirds of the votes cast on that resolution.
“unanimous member agreement”
« convention unanime des membres »
“unanimous member agreement” means an agreement described in subsection 170(1) or a declaration of a member described in subsection 170(2).
Marginal note:Affiliated bodies corporate
(2) For the purposes of this Act,
(a) one body corporate is the affiliate of 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 affiliates of the same body corporate at the same time, they are deemed to be affiliates of each other.
(3) For the purposes of this Act, a body corporate is controlled by a person or by two or more bodies corporate if
(a) shares or memberships of the body corporate to which are attached more than 50 per cent 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 or by or for the benefit of those bodies corporate; and
(b) the votes attached to those shares or memberships are sufficient, if exercised, to elect a majority of the directors of the body corporate.
Marginal note:Holding body corporate
(4) A body corporate is the holding body corporate of another if that other body corporate is its subsidiary.
Marginal note:Subsidiary body corporate
(5) A body corporate is a subsidiary of another body corporate if
(a) it is controlled by
(i) that other body corporate,
(ii) that other body corporate and one or more bodies corporate each of which is controlled by that other body corporate, or
(iii) two or more bodies corporate each of which is controlled by that other body corporate; or
(b) it is a subsidiary of a body corporate that is itself a subsidiary of that other body corporate.
Marginal note:Soliciting corporation
(5.1) A corporation becomes a soliciting corporation for a prescribed duration from the prescribed date, if it received, during the prescribed period, income in excess of the prescribed amount in the form of
(a) donations or gifts or, in Quebec, gifts or legacies of money or other property requested from any person who is not
(i) a member, director, officer or employee of the corporation at the time of the request,
(ii) the spouse of a person referred to in subparagraph (i) or an individual who is cohabiting with that person in a conjugal relationship, having so cohabited for a period of at least one year, or
(iii) a child, parent, brother, sister, grandparent, uncle, aunt, nephew or niece of a person referred to in subparagraph (i) or of the spouse or individual referred to in subparagraph (ii);
(b) grants or similar financial assistance received from the federal government or a provincial or municipal government, or an agency of such a government; or
(c) donations or gifts or, in Quebec, gifts or legacies of money or other property from a corporation or other entity that has, during the prescribed period, received income in excess of the prescribed amount in the form of donations, gifts or legacies referred to in paragraph (a) or grants or similar financial assistance referred to in paragraph (b).
Marginal note:Application to be deemed non-soliciting
(6) On the application of a corporation, the Director may decide that the corporation is, for the purposes of this Act, to be considered as not being — or not having been — a soliciting corporation if the Director is satisfied that the determination would not be prejudicial to the public interest.
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