Marginal note:Court review of election

• 169. (1) A corporation or a member or director may apply to a court to determine any controversy with respect to an election or appointment of a director or public accountant of the corporation.

• Marginal note:Powers of court

  (2) On an application under this section, the court may make

  • (a) an order restraining a director or public accountant whose election or appointment is challenged from acting pending determination of the dispute;

  • (b) an order declaring the result of the disputed election or appointment;

  • (c) an order requiring a new election or appointment, and including in the order directions for the management of the activities and affairs of the corporation until a new election is held or appointment made;

  • (d) an order determining the voting rights of members and of persons claiming to hold memberships; and

  • (e) any other order that it thinks fit.

Marginal note:Unanimous member agreement

• 170. (1) An otherwise lawful written agreement among all the members of a corporation that is not a soliciting corporation, or among all the members and one or more persons who are not members, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the activities and affairs of the corporation is valid.

• Marginal note:Declaration by sole member

  (2) A written declaration of the sole member of a corporation that similarly restricts the directors’ powers is valid.

• Marginal note:Constructive party

  (3) A person who becomes a member of a corporation that is subject to a unanimous member agreement is deemed to be a party to the agreement.

• Marginal note:When no notice given

  (4) If notice is not given to a member of the existence of a unanimous member agreement, in the manner referred to in subsection 42(2) or otherwise, the member may, no later than the prescribed period after they become aware of the existence of the agreement, rescind the transaction by which they acquired the membership and, within that period, the member is entitled to the return of any amount paid in respect of the membership.

• Marginal note:Rights of member

  (5) To the extent that a unanimous member agreement restricts the powers of the directors to manage, or supervise the management of, the activities and affairs of the corporation, parties to the agreement who are given that power to manage or supervise the management of the activities and affairs of the corporation have all the rights, powers, duties and liabilities of a director of the corporation, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 146, to the same extent.

• Marginal note:Discretion of members

  (6) Nothing in this section prevents members from fettering their discretion when exercising the powers of directors under a unanimous member agreement.

• Marginal note:No absentee voting

  (7) Members that are party to a unanimous member agreement may not vote in accordance with section 171 when exercising the authority delegated to them under the agreement.

• Marginal note:Termination

  (8) If the unanimous member agreement does not provide for its termination, the members may terminate the agreement by a special resolution.

Marginal note:Absentee voting

• 171. (1) The by-laws of a corporation may provide for any prescribed methods of voting by members not in attendance at a meeting of members. If the by-laws so provide, they shall set out procedures for collecting, counting and reporting the results of any vote.

• Marginal note:Application for authorization

  (2) On application of the corporation, the Director may authorize the corporation, on any terms that the Director thinks fit, to permit members to vote by any method if the Director reasonably believes that the members and the corporation will not be prejudiced.

PART 11FINANCIAL DISCLOSURE

Marginal note:Annual financial statements

• 172. (1) The directors of a corporation shall place before the members at every annual meeting

  • (a) prescribed comparative financial statements that conform to any prescribed requirements and relate separately to

    • (i) the period that began on the date the corporation came into existence and ended not more than six months before the annual meeting or, if the corporation has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, and

    • (ii) the immediately preceding financial year;

  • (b) the report of the public accountant, if any; and

  • (c) any further information respecting the financial position of the corporation and the results of its operations required by the articles, the by-laws or any unanimous member agreement.

• Marginal note:Exception

  (2) Despite paragraph (1)(a), the financial statements referred to in subparagraph (1)(a)(ii) may be omitted if the reason for the omission is set out in the financial statements, or in a note to those statements, to be placed before the members at an annual meeting.

Marginal note:Application for exemption

173. On the application of a corporation, the Director may exempt the corporation, on any terms that the Director thinks fit, from any requirement in this Part if the Director reasonably believes that the detriment that may be caused to the corporation by the requirement outweighs its benefit to the members or, in the case of a soliciting corporation, the public.

Marginal note:Consolidated statements

• 174. (1) A corporation shall keep at its registered office a copy of the financial statements of each of its subsidiaries and of each body corporate the accounts of which are consolidated in the financial statements of the corporation.

• Marginal note:Examination

  (2) Members of a corporation and their personal representatives may on request examine the statements referred to in subsection (1) during the corporation’s usual business hours and make copies or take extracts free of charge.

• Marginal note:Barring examination

  (3) On the application of a corporation made within the prescribed period after a request to examine under subsection (2), a court may, if it is satisfied that the examination would be detrimental to the corporation or a subsidiary, bar the right to examine and make any further order that it thinks fit.

• Marginal note:Notice to Director

  (4) A corporation shall give the Director and the person asking to examine under subsection (2) notice of an application under subsection (3), and the Director and the person may appear and be heard in person or by counsel.

Marginal note:Copies to members

• 175. (1) A corporation, within the prescribed period, shall send a copy or summary of the documents referred to in subsection 172(1) or a copy of a publication of the corporation reproducing the information contained in the documents or summary to each member, other than a member who, in writing, declines to receive such documentation. A corporation that sends a summary to a member shall also inform that member of the procedure for obtaining a copy of the documents free of charge.

• Marginal note:Notice

  (2) A corporation, instead of sending the documentation referred to in subsection (1), may, if the by-laws so provide, give members notice in the manner referred to in section 162 that the documents referred to in subsection 172(1) are available at the registered office of the corporation and that any member may, on request, obtain a copy free of charge at the office or by prepaid mail.

Marginal note:Copies to Director

• 176. (1) A soliciting corporation shall send a copy of the documents referred to in subsection 172(1) to the Director

  • (a) not less than the prescribed period before each annual meeting of members, or without delay after a resolution referred to in paragraph 166(1)(b) is signed; and

  • (b) in any event within the prescribed period after the preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, but no later than the prescribed period after the end of the corporation’s preceding financial year.

• Marginal note:Subsidiary corporation exception

  (2) A subsidiary corporation is not required to comply with this section if

  • (a) the financial statements of its holding corporation are in consolidated or combined form and include the accounts of the subsidiary; and

  • (b) the consolidated or combined financial statements of the holding corporation are included in the documents sent to the Director by the holding corporation in compliance with this section.

Marginal note:Copies to Director

177. A corporation shall, at the request of the Director, furnish the Director with a copy of the documents referred to in subsection 172(1).

Marginal note:Approval of financial statements

• 178. (1) The directors of a corporation shall approve the financial statements referred to in section 172 and the approval shall be evidenced by the manual signature of one or more directors or a facsimile of the signatures reproduced in the statements.

• Marginal note:Condition precedent

  (2) A corporation shall not issue, publish or circulate copies of the financial statements referred to in section 172 unless the financial statements are

  • (a) approved and signed in accordance with subsection (1); and

  • (b) accompanied by the report of the public accountant of the corporation, if any.

PART 12PUBLIC ACCOUNTANT

Definition of “designated corporation”

179. In this Part, “designated corporation” means

• (a) a soliciting corporation that has gross annual revenues for its last completed financial year that are equal to or less than the prescribed amount or that is deemed to have such revenues under paragraph 190(a); and

• (b) a non-soliciting corporation that has gross annual revenues for its last completed financial year that are equal to or less than the prescribed amount.

Marginal note:Qualification of public accountant

• 180. (1) In order to be a public accountant of a corporation, a person shall

  • (a) be a member in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province;

  • (b) meet any qualifications under an enactment of a province for performing any duty that the person is required to perform under sections 188 to 191; and

  • (c) subject to subsection (6), be independent of the corporation, its affiliates, or the directors or officers of the corporation or its affiliates.

• Marginal note:Independence

  (2) For the purposes of this section,

  • (a) independence is a question of fact; and

  • (b) a person is deemed not to be independent if that person or their business partner

    • (i) is a business partner, a director, an officer or an employee of the corporation or any of its affiliates, or is a business partner of any director, officer or employee of the corporation or any of its affiliates,

    • (ii) beneficially owns or controls, directly or indirectly, a material interest in the debt obligations of the corporation or any of its affiliates, or

    • (iii) has been a receiver, receiver-manager, sequestrator, liquidator or trustee in bankruptcy of the corporation or any of its affiliates within two years before the person’s proposed appointment as public accountant of the corporation.

• Marginal note:Business partners

  (3) For the purposes of subsection (2), a person’s business partner includes a shareholder or member of that person.

• Marginal note:Duty to resign

  (4) A public accountant who becomes disqualified under this section shall, subject to subsection (6), resign immediately after becoming aware of the disqualification.

• Marginal note:Disqualification order

  (5) On the application of an interested person, a court may make an order declaring a public accountant to be disqualified under this section and the office of public accountant to be vacant.

• Marginal note:Relieving order

  (6) On the application of an interested person, a court may, if it is satisfied that the order would not unfairly prejudice the members of the corporation, make an order on any terms that it thinks fit relieving a public accountant from meeting any requirement under subsection (1). The order may have retroactive effect.

Marginal note:Appointment of public accountant

• 181. (1) Subject to section 182, members of a corporation shall, by ordinary resolution, at each annual meeting, appoint a public accountant to hold office until the close of the next annual meeting.

• Marginal note:Eligibility

  (2) A public accountant appointed under section 127 is eligible for appointment under subsection (1).

• Marginal note:Incumbent public accountant

  (3) If a public accountant is not appointed at a meeting of members and if no resolution is taken under section 182, the incumbent public accountant continues in office until a successor is appointed.

• Marginal note:Remuneration

  (4) The remuneration of a public accountant may be fixed by ordinary resolution of the members or, if not so fixed, shall be fixed by the directors.

Marginal note:Dispensing with public accountant

• 182. (1) Members of a designated corporation may resolve not to appoint a public accountant, but the resolution is not valid unless all the members entitled to vote at an annual meeting of members consent to the resolution.

• Marginal note:Validity of resolution

  (2) The resolution is valid until the following annual meeting of members.

Marginal note:Ceasing to hold office

• 183. (1) A public accountant of a corporation ceases to hold office when the public accountant

  • (a) dies or resigns; or

  • (b) is removed under section 184.

• Marginal note:Effective date of resignation

  (2) A resignation of a public accountant becomes effective at the time a written resignation is sent to the corporation or at the time specified in the resignation, whichever is later.

Marginal note:Removal of public accountant

• 184. (1) The members of a corporation may by ordinary resolution at a special meeting remove a public accountant from office, other than a public accountant appointed by a court under section 186.

• Marginal note:Vacancy

  (2) A vacancy created by the removal of a public accountant may be filled at the meeting at which the public accountant is removed or, if not so filled, may be filled under section 185.

Marginal note:Filling vacancy

• 185. (1) Subject to subsection (3), the directors shall immediately fill a vacancy in the office of public accountant.

• Marginal note:Calling meeting

  (2) If there is not a quorum of directors, the directors then in office shall, within the prescribed period after a vacancy in the office of public accountant occurs, call a special meeting of members to fill the vacancy and, if they fail to call a meeting or if there are no directors, the meeting may be called by any member.

• Marginal note:Members filling vacancy

  (3) The articles of a corporation may provide that a vacancy in the office of public accountant shall only be filled by vote of the members.

• Marginal note:Unexpired term

  (4) A public accountant appointed to fill a vacancy holds office for the unexpired term of the public accountant’s predecessor.

Marginal note:Court-appointed public accountant

• 186. (1) If a corporation does not have a public accountant, a court may, on the application of a member or the Director, appoint and fix the remuneration of a public accountant, who holds office until a public accountant is appointed by the members.

• Marginal note:Exception

  (2) Subsection (1) does not apply if the members have resolved under section 182 not to appoint a public accountant.

Marginal note:Right to attend meeting

• 187. (1) The public accountant is entitled to attend a meeting of members at the expense of the corporation and be heard on matters relating to the public accountant’s duties.

• Marginal note:Duty to attend and answer questions

  (2) If a director or member, whether or not the member is entitled to vote at the meeting, gives written notice not less than the prescribed period before a meeting of members to the public accountant or a former public accountant of the corporation, the public accountant or former public accountant shall attend the meeting at the expense of the corporation and answer questions relating to their duties.

• Marginal note:Notice to corporation

  (3) A director or member who sends the notice shall send a copy of the notice to the corporation at the same time.

• Marginal note:Statement of public accountant

  (4) A public accountant is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing their removal or replacement if a meeting of directors or members is called at which any of those matters will be dealt with.

• Marginal note:Other statements

  (5) If a meeting is called to replace the public accountant, the corporation shall make a statement respecting the reasons for the replacement and the proposed replacement public accountant may make a statement respecting the reasons.

• Marginal note:Circulating statement

  (6) The corporation shall immediately give notice to the members of the statements referred to in subsections (4) and (5) in the manner referred to in section 162 and shall immediately send a copy of the statements to the Director.

• Marginal note:Replacing public accountant

  (7) No person shall accept an appointment or consent to be appointed as public accountant of a corporation to replace a public accountant who has resigned, been removed or whose term of office has expired or is about to expire until the person has requested and received from that public accountant a written statement of the circumstances and the reasons, in that public accountant’s opinion, for their replacement.

• Marginal note:Exception

  (8) A person otherwise qualified may accept an appointment or consent to be appointed as a public accountant if, within the prescribed period after making the request, the person does not receive a reply.

• Marginal note:Effect of non-compliance

  (9) The appointment of a person who does not make the request is void.