Acts and Regulations

C-13 - Companies Act

Full text
Current to 1 January 2024
CHAPTER C-13
Companies Act
Application of Act
1This Act applies to
(a) all companies incorporated under it;
(a.1) all companies referred to in section 1.01; and
(b) all companies incorporated under the New Brunswick Companies Act, 1916, or Chapter 88 of the Revised Statutes, 1927, or to which that Chapter applied at the time of the coming into force of this Act.
R.S., c.33, s.1; 2017, c.55, s.5
Existing agricultural associations
1.01If an agricultural association was incorporated under the Agricultural Associations Act, chapter 104 of the Revised Statutes, 2011, before the commencement of this section and it was not dissolved or its incorporation was not revoked or cancelled before the commencement of this section, the agricultural association is continued as a company under this Act.
2017, c.55, s.5
Effect of the Business Corporations Act
1.1Notwithstanding section 1, after the coming into force of the Business Corporations Act this Act does not apply to corporations as defined under the Business Corporations Act.
1981, c.12, s.1
Effect of the Loan and Trust Companies Act
1.11After the commencement of the Loan and Trust Companies Act and notwithstanding any other provision of this Act, this Act does not apply to a provincial company as defined in the Loan and Trust Companies Act or, except as provided in subsection 1.2(3.1), a body corporate referred to in paragraph 2(b) of that Act.
1987, c.L-11.2, s.280
Effect of the Business Corporations Act
1.2(1)Subject to subsection (3), after the coming into force of the Business Corporations Act letters patent incorporating a company shall not be issued under this Act.
1.2(2)Supplementary letters patent and letters patent amalgamating companies shall not be issued under this Act after two years following the coming into force of the Business Corporations Act.
1.2(3)Notwithstanding subsection (1), letters patent incorporating a club or association referred to in section 16 or a company referred to in section 18 or in Part II may be issued under this Act after the coming into force of the Business Corporations Act and notwithstanding subsection (2) supplementary letters patent with respect to such clubs, associations or companies or letters patent amalgamating such clubs, associations or companies may be issued under this Act after the time stipulated therein.
1.2(3.1)Notwithstanding subsection (2), supplementary letters patent may be issued under this Act after the time stipulated in subsection (2)
(a) to a body corporate referred to in paragraph 2(b) of the Loan and Trust Companies Act,
(i) for one year after the commencement of the Loan and Trust Companies Act,
(ii) if it applies for letters patent of continuance in accordance with paragraph 3(1)(a) of the Loan and Trust Companies Act and a first licence under that Act, until the Minister of Justice issues or refuses to issue the letters patent of continuance and the first licence,
(iii) if it applies to be continued in another jurisdiction in accordance with paragraph 3(1)(b) of the Loan and Trust Companies Act, until the Minister of Justice issues a certificate referred to in subsection 4(2) of that Act or a certificate of discontinuance, as the case may be, or
(iv) if it applies for a certificate of continuance under the Business Corporations Act in accordance with paragraph 3(1)(c) of the Loan and Trust Companies Act, until the Minister of Justice issues a certificate of discontinuance referred to in subsection 29(5) of the Loan and Trust Companies Act,
whichever is earliest, and
(b) to an insurance company.
1.2(4)After the coming into force of the Business Corporations Act no charter shall be revived under this Act except the charter of a club or association referred to in section 16 or a company referred to in section 18 or Part II.
1.2(5)This section applies notwithstanding any other provision in this Act.
1981, c.12, s.1; 1982, c.16, s.1; 1983, c.19, s.1; 1986, c.18, s.3; 1987, c.L-11.2, s.280; 1991, c.27, s.10; 2002, c.15, s.1; 2002, c.29, s.3; 2006, c.16, s.43; 2012, c.39, s.52; 2016, c.37, s.35; 2019, c.2, s.27
DEFINITIONS AND FORMS
Definitions and forms
2(1)In this Act and in all letters patent and supplementary letters patent issued hereunder, unless the context otherwise requires,
“agricultural association” means an agricultural fair association or an agricultural society;(association agricole)
“agricultural fair association” means an organization of district, county or provincial scope whose purpose is to hold exhibitions of livestock, poultry, agricultural produce and the products of kindred agricultural and homemaking arts;(association de foires agricoles)
“agricultural society” means a community group of farmers organized for the general promotion of agriculture within that community;(société agricole)
“company” means a company to which this Act applies;(compagnie)
“Court” means The Court of King’s Bench of New Brunswick; (Cour)
“Director” means the Director appointed under subsection 2.1(2) and includes a deputy director authorized under subsection 2.1(4) to carry out the duties and to exercise the powers of the Director under this Act;(Directeur)
“Judge” means a judge of the Court;(juge)
“letters patent” means the letters patent incorporating a company for any purpose contemplated by this Act;(lettres patentes)
“Minister” Repealed: 2002, c.29, s.3
“project company” means a company that has received, as required under subsection 18.1(1), the written consent of the Minister of Transportation and Infrastructure to incorporate as a project company under this Act for the purposes of entering into an agreement with the New Brunswick Highway Corporation as referred to in subsection 6(3) of the New Brunswick Highway Corporation Act;(gérant de projet)
“real estate” or “land” includes messuages, lands, tenements, and hereditaments of any tenure, and all immovable property;(biens réels) ou (biens-fonds)
“shareholder” means every subscriber to, or holder of, stock in the company, and includes every member of a company without share capital and the personal representatives of the shareholder;(actionnaire)
“supplementary letters patent” means any letters patent granted to the company subsequent to the letters patent incorporating the company;(lettres patentes supplémentaires)
“the undertaking” means the business that the company is authorized to carry on.(entreprise)
2(2)The Lieutenant-Governor in Council may make regulations prescribing forms required under this Act.
R.S., c.33, s.2; 1973, c.74, s.10; 1978, c.D-11.2, s.7; 1979, c.41, s.20; 1997, c.61, s.1; 2002, c.15, s.2; 2002, c.29, s.3; 2010, c.31, s.28; 2017, c.55, s.5; 2023, c.17, s.36
ADMINISTRATION
1978, c.D-11.2, s.7
Administration of Act
2.1(1)Service New Brunswick is responsible for the administration of this Act.
2.1(2)The Lieutenant-Governor in Council may appoint a Director for the purposes of this Act.
2.1(3)Service New Brunswick may appoint one or more deputy directors for the purposes of this Act.
2.1(4)Service New Brunswick or the Director may authorize a deputy director to carry out any duties or exercise any powers that may be carried out or exercised by the Director under this Act.
2.1(5)A document in writing signed by a proper officer of Service New Brunswick or the Director authorizing a deputy director to carry out the duties or to exercise the powers that may be carried out or exercised by the Director under this Act shall, without proof of the signature or appointment of the officer or Director, be accepted by all courts in the Province as conclusive proof of the authority stated in the document.
2.1(6)The deputy director in possession of a written authority referred to in subsection (5) shall, upon proof that his or her name is the same as the deputy director named in the authority, be deemed to be the deputy director named in it.
2.1(7)A written authority signed by the officer or the Director under subsection (5) shall be effective until revoked.
1978, c.D-11.2, s.7; 2002, c.29, s.3
Director’s signature
2.11Where the signature of the Director is required for any purpose under this Act, the signature may be printed, stamped or otherwise mechanically reproduced.
2002, c.15, s.3; 2002, c.29, s.4
Dating of letters patent
2.12The Director may date letters patent and supplementary letters patent issued under subsection 4(4) the day the application for the letters patent or supplementary letters patent is received by the Director or any later day.
2002, c.15, s.3; 2002, c.29, s.4
Inspection and certified copies of documents
2.2(1)Any person may during normal business hours inspect documents filed, delivered or issued under this Act and, upon payment of a fee, may obtain copies thereof.
2.2(2)Subject to section 2.4, the Director shall, upon payment of a fee, furnish any person with a certified copy of a document filed, delivered or issued under this Act.
2.2(3)Notwithstanding the Evidence Act, a certified copy referred to in subsection (2) signed or purporting to be signed by the Director is admissible in evidence, without proof of the appointment, signature or authority of the Director, to the same extent as the original document would have been.
1986, c.22, s.1; 2002, c.29, s.3
Storage of documents
2.3(1)All documents filed, delivered or issued under this Act may be kept in bound or loose-leaf form or in photographic film form, or may be entered or recorded by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
2.3(2)When documents filed, delivered or issued under this Act are maintained other than in written form the Director shall furnish any copy required to be furnished under subsection 2.2(2) in intelligible written form.
2.3(3)The Director is not required to produce any document where a copy of that document is furnished in intelligible written form in accordance with subsection (2).
1986, c.22, s.1; 2002, c.29, s.3
Limitation period
2.4The Director is not required to produce any original document, other than letters patent or supplementary letters patent, after six years after the date the document was filed, delivered or issued.
1986, c.22, s.1; 2002, c.29, s.3
Destruction of documents
2.5Notwithstanding the Archives Act, when documents filed, delivered or issued under this Act are maintained other than in written form the Director may authorize the destruction of the original documents, other than letters patent or supplementary letters patent, after six years after the date the documents were filed, delivered or issued.
1986, c.22, s.1; 2002, c.29, s.3
PRELIMINARIES
Interpretation of Act
3The provisions of this Act relating to matters preliminary to the issue of letters patent or supplementary letters patent shall be deemed directory only, and no letters patent or supplementary letters patent issued under this Act are void or voidable on account of any irregularity or insufficiency in respect of any matter preliminary to the issue thereof.
R.S., c.33, s.3
I
FORMATION
OF NEW COMPANIES
Granting of charter by letters patent
4(1)The Director may, by letters patent, grant a charter to any number of persons, not less than three, who apply therefor, constituting such persons and others who become shareholders in the company thereby created, a body corporate and politic for any of the purposes or objects to which the authority of this Legislature extends, except the construction and working of railways, the management of trades unions, friendly societies, building societies, trust companies, loan companies, or other associations of like character.
4(2)Except as provided in Part II, a charter may not be granted for the purposes or objects of conducting the business of an insurer.
4(3)The Director may grant to a company that applies therefor, supplementary letters patent modifying its special Act, letters patent or prior supplementary letters patent, if any.
4(4)Letters patent and supplementary letters patent under this Act may be issued by the Director.
4(5)Nothing in this Act shall be construed to prevent any company from exchanging with any other companies or persons reciprocal contracts of indemnity against loss by fire, or otherwise, under the plan known as inter-insurance or reciprocal insurance.
R.S., c.33, s.4; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.2; 2002, c.15, s.4; 2002, c.29, s.3
Repealed
5Repealed: 1981, c.12, s.3
R.S., c.33, s.5; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.3
Particulars of application for letters patent
6(1)The applicants for letters patent, who must be of the full age of nineteen years, shall file with the Director an application setting forth the following particulars:
(a) the proposed corporate name of the company, which shall include the word “Limited” or “Limitée” or the abbreviation “Ltd.” or “Ltée”, which name shall not be that of any other known corporation or association, incorporated or unincorporated, or of any syndicate or partnership or of any individual or any name under which any known business is being carried on or so nearly resembling the same as to be liable to be confounded therewith, or otherwise on public grounds objectionable, except where the existing corporation, association, partnership, individual or person signifies its or his consent in writing to its or his name in whole or in part being granted to the proposed company;
(b) the purposes for which its incorporation is sought;
(c) the place within New Brunswick that is to be its head office;
(d) the proposed amount of its capital stock which may be expressed in Canadian or other currency, or partly in one currency and partly in another;
(e) the number of shares and the amount of each share; and in the case of shares without nominal or par value, the maximum aggregate amount for which such shares may be issued or allotted except where all such shares are stated in the application to be issued or allotted for a consideration other than cash, in which case the total value of such consideration shall be stated;
(f) where the shares are to be of more than one class, the special rights, preferences, restrictions, conditions and limitations attaching to each class of shares;
(g) the name in full and the address and calling of each of the applicants, with special mention of the names of not more than fifteen nor less than three of their number, who are to be the first or provisional directors of the company;
(h) the amount and class of stock taken by each applicant, the amount, if any, paid in upon the stock by each applicant, and the manner in which the same has been paid, and is held for the company.
6(2)In the case of a non-trading company, the name may include the word “Incorporated” or “Incorporée”, or the abbreviation “Inc.” instead of “Limited”, “Limitée”, “Ltd.” or “Ltée” as required by subsection (1).
6(3)If the company has a name consisting of a separated or combined French and English form, it may from time to time use, and it may be legally designated by, either the French or English form of its name or both forms.
R.S., c.33, s.6; 1966, c.40, s.1; O.C. 64-312; 1972, c.5, s.2; 1977, c.11, s.1; 1978, c.D-11.2, s.7; 1991, c.27, s.10; 2002, c.15, s.5; 2002, c.29, s.3
Form of application for letters patent
7(1)The application shall be in the form prescribed by regulation, or to the like effect, and may ask to have embodied in the letters patent any provision that could under this Act be contained in a by-law of the company, which provision so embodied shall not, unless power is given therefor in the letters patent or supplementary letters patent, be subject to repeal or alteration by by-law.
7(2)Any similar provision that is embodied in any supplementary letters patent shall not, unless power is given therefor in the supplementary letters patent, be subject to repeal or alteration by by-law.
R.S., c.33, s.7
Repealed
8Repealed: 2002, c.15, s.6
R.S., c.33, s.8; 1957, c.26, s.1; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.6
Name of company and other preliminary matters
9(1)Before the letters patent are issued the applicants shall, if required by the Director, establish to the satisfaction of the Director the sufficiency of their application and the truth and sufficiency of the facts therein set forth, and that the proposed name is not the name of any other known corporation or association, incorporated or unincorporated, or of any syndicate or partnership or of any individual or any name under which any known business is being carried on or so nearly resembling the same as to be liable to be confounded therewith, or otherwise on public grounds objectionable; and for that purpose the Director shall take any requisite evidence in writing by oath or affirmation or by statutory declaration under the Evidence Act, and shall keep on record any such evidence so taken.
9(2)Repealed: 1984, c.27, s.4
R.S., c.33, s.9; O.C. 64-312; 1978, c.D-11.2, s.7; 1984, c.27, s.4; 2002, c.15, s.7; 2002, c.29, s.3
Repealed
10Repealed: 2002, c.15, s.8
R.S., c.33, s.10; 1967, c.38, s.2; 1983, c.19, s.2; 2002, c.15, s.8
Content of letters patent
11(1)The letters patent shall recite such of the established averments in the application as seem expedient to the Director.
11(2)The Director may give to the company a corporate name different from that proposed by the applicants if the proposed name is objectionable.
11(3)In the case of any misnomer, misdescription or clerical error in the letters patent, supplementary letters patent or similar document issued by the Director, the Director may direct that the correction be made and on so doing shall give notice of the correction in The Royal Gazette.
R.S., c.33, s.11; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.9; 2002, c.29, s.3
Publication of letters patent
12Notice of the granting of letters patent or supplementary letters patent shall be given forthwith by the Director in The Royal Gazette, and the cost of publication of such notice shall be paid by the applicants.
R.S., c.33, s.12; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Shares and certificates
13(1)The letters patent or any supplementary letters patent of a company may provide for the issue of shares of the capital stock of such company without any nominal or par value, except in the case of preferred stock having a preference as to principal; and if such preferred stock or any part thereof has a preference as to principal, the letters patent shall state the amount of such preferred stock having such preference, the particular character of such preference, and the amount of each share thereof which may be expressed in Canadian or other currency, or partly in one currency and partly in another.
13(2)The certificates of preferred shares having a preference as to principal shall state briefly the amount that the holder of any of such preferred shares is entitled to receive on account of principal from the assets of the company in preference to the holders of other shares, and shall state briefly any other rights or preferences given to the holder of such shares.
13(3)Each share of the capital stock without nominal or par value shall be equal to every other share of such capital stock, subject to the preferences, restrictions or other conditions attached to any other class of shares, if any, authorized to be issued.
13(4)Every certificate of shares without nominal or par value shall have plainly written or printed upon its face the number of such shares that it represents and the number of such shares that the company is authorized to issue, and no such certificate shall express any nominal or par value of such shares.
13(5)The issue and allotment of shares authorized by this section, other than shares of preferred stock having a preference as to principal, may be made from time to time for such consideration as may be prescribed in the letters patent, or as may be fixed by the board of directors pursuant to authority conferred in the letters patent or if the letters patent do not so provide, then by the consent of the holders of two-thirds of each class of shares then outstanding given at a meeting called for that purpose in the manner prescribed by by-law.
13(6)All shares issued as permitted by this section, for which the consideration has been paid, shall be deemed fully paid and non-assessable, and the holder of the shares is not liable to the company or to its creditors in respect thereof, but no such shares may be issued or allotted for a greater consideration than the maximum amount stated in the letters patent or supplementary letters patent or in a resolution passed by the directors for the purpose of increasing such maximum amount, as hereinafter provided.
13(7)The maximum aggregate amount for which the shares without nominal or par value may be issued or allotted may be increased from time to time by the directors of the company passing a resolution to increase such maximum amount to a stated amount, and the filing with the Director of a certificate of the due passing of such resolution, and the payment of the fee provided for such increase, whereupon the Director shall issue to the company a certificate that such maximum amount has been increased to the amount stated in the resolution, and shall give notice in The Royal Gazette of such maximum amount being so increased, the cost of the notice to be paid by the company.
13(8)The amount of capital of the company shall be not less than the aggregate amount of the consideration for the issue and allotment of the shares without nominal or par value from time to time outstanding, and in addition thereto an amount equal to the total par value of all other issued and outstanding shares of the capital stock of the company, and in no case shall the amount of capital with which a company carries on business be less than the sum of five hundred dollars expressed in Canadian currency or the equivalent value in any other currency.
R.S., c.33, s.13; O.C. 64-312; 1977, c.11, s.2; 1978, c.D-11.2, s.7; 1991, c.27, s.10; 2002, c.29, s.3
Voting rights of members
13.1(1)If a company without capital stock has only one class of membership, the rights of those members are equal in all respects and include the right to vote at any meeting of the members of the company.
13.1(2)The letters patent, supplementary letters patent or by-laws may provide for more than one class of membership and, if they so provide,
(a) the terms and conditions applicable to each class shall be set out in the letters patent, supplementary letters patent or by-laws, as the case may be, and
(b) the right to vote under subsection (1) shall be attached to at least one class, having at least three members.
13.1(3)Where a company has more than one class of membership, the letters patent, supplementary letters patent or by-laws may provide that a class of membership
(a) has the right to elect or appoint a specified number of directors, or
(b) has the exclusive right to elect or appoint directors.
13.1(4)No by-law made under this section is effective until it has been confirmed by at least two-thirds of the votes cast at a general or special meeting of the members duly called for considering the by-law.
2002, c.15, s.10
Ancillary powers of a company
14(1)A company to which this Act applies shall have, as incidental and ancillary to its powers, power to
(a) carry on any other business whether manufacturing or otherwise which may seem to the company capable of being conveniently carried on in connection with its business or calculated directly or indirectly to enhance the value of or render profitable any of the company’s property or rights;
(b) acquire or undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the company is authorized to carry on, or possessed of property suitable for the purposes of the company;
(c) apply for, purchase or otherwise acquire any patents, licences, concessions and the like, conferring any exclusive or non-exclusive or limited right to use, or any secret or other information as to any invention that may seem capable of being used for any of the purposes of the company or the acquisition of which may seem calculated directly or indirectly to benefit the company, and to use, exercise, develop or grant licences in respect of, or otherwise turn to account the property rights or information so acquired;
(d) enter into partnership or into any arrangement for sharing of profits, union of interests, co-operation, joint adventure, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction that the company is authorized to carry on or engage in or any business or transaction capable of being conducted so as directly or indirectly to benefit the company; and to lend money to guarantee the contracts of, or otherwise assist, any such person or company and to take or otherwise acquire shares and securities of any such company, and to sell, hold, re-issue, with or without guarantee, or otherwise deal with the same;
(e) take or otherwise acquire and hold shares in any other company having objects altogether or in part similar to those of the company or carrying on any business capable of being conducted so as directly or indirectly to benefit the company;
(f) enter into any arrangements with any authorities, municipal, local or otherwise, that may seem conducive to the company’s objects, or any of them, and obtain from any such authority any rights, privileges and concessions that the company may think it desirable to obtain, and carry out, exercise and comply with any such arrangements, rights, privileges and concessions;
(g) establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit employees or ex-employees of the company or its predecessors in business or the dependents or connections of such persons, grant pensions and allowances and make payments towards insurance, and subscribe or guarantee money for charitable or benevolent objects, or for any exhibition or for any public, general or useful object;
(h) promote any company or companies for the purpose of acquiring all or any of the property and liabilities of the company, or for any other purpose that may seem directly or indirectly calculated to benefit the company;
(i) purchase, take on lease or in exchange, hire, and otherwise acquire and hold, sell, and subject to section 81 mortgage, hypothecate, convey or otherwise deal with any real and personal property and any rights or privileges that the company may think necessary or convenient for the purposes of its business and in particular any land, buildings, easements, machinery, plant and stock in trade;
(j) construct, improve, maintain, work, manage, carry out or control any roads, ways, tramways, branches or sidings, bridges, reservoirs, water-courses, wharves, manufactories, warehouses, electric works, shops, stores, and other works and conveniences that may seem calculated directly or indirectly to advance the company’s interests and contribute to, subsidize, or otherwise assist or take part in the construction, improvement, maintenance, working management, carrying out or control thereof;
(k) lend money to customers and others having dealings with the company and to guarantee the performance of contracts by any such persons;
(l) draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants and other negotiable or transferable instruments;
(m) sell or dispose of the undertaking of the company or any part thereof for such consideration as the company may think fit, and in particular for shares, debentures or securities of any other company having objects altogether or in part similar to those of the company;
(n) apply for, secure, acquire by assignment, transfer, purchase or otherwise, and to exercise, carry out and enjoy any charter, licence, power, authority, franchise, concession, right or privilege, that any government or authority or any corporation or other public body may be empowered to grant, and to pay for, aid in and contribute towards carrying the same into effect, and to appropriate any of the company’s shares, bonds and assets to defray the necessary costs, charges and expenses thereof;
(o) procure the company to be registered and recognized in any place outside New Brunswick, and to designate persons therein according to the laws of such place, to represent the company, and to accept service for and on behalf of the company of any process or suit;
(p) remunerate any person or company for services rendered, or to be rendered, in placing or assisting to place or guaranteeing the placing of any of the shares in the company’s capital or any debentures, debenture stock or other securities of the company, or in or about the formation or promotion of the company or the conduct of its business;
(q) raise and assist in raising money for and to aid by way of bonus, loan, promise, endorsement, guarantee or otherwise any other company with which the company may have business relations or any of whose shares, debentures or other obligations are held by the company and to guarantee the performance or fulfilment of any contract or obligation of any such company or of any person with whom the company may have business relations and in particular to guarantee the payment of the principal of and interest on debentures or other securities, mortgages and liabilities of any such company;
(r) adopt such means of making known the products of the company as may seem expedient, and in particular by advertising, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations;
(s) sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with all or any part of the property and rights of the company;
(t) issue and allot fully or partly paid shares of the capital of the company in payment or part payment of any property purchased or otherwise acquired by the company, or of any services rendered to the company;
(u) distribute among the shareholders of the company in kind, specie or otherwise, any property or assets of the company including any proceeds of the sale or disposal of any property of the company and in particular any shares, debentures, or other securities of or in any other company belonging to the company or of which it may have power to dispose; if such distribution is made for the purpose of enabling the company to surrender its charter under the provisions of this Act, or the distribution, apart from the provisions of this paragraph, would have been lawful if made in cash;
(v) pay out of the funds of the company all or any of the expenses of or incidental to the formation and organization thereof, or that the company may consider to be preliminary;
(w) establish agencies and branches;
(x) invest and deal with the money of the company not immediately required in such manner as may be determined;
(y) take or hold mortgages, hypothecs, liens and charges to secure payment of the purchase price, or for any unpaid balance of the purchase price of any part of the company’s property of whatsoever kind sold by the company, or any money due to the company from purchasers and others and to sell or otherwise dispose of said mortgages, hypothecs, liens and charges;
(z) do all or any of the above things and all things authorized by the letters patent or supplementary letters patent as principals, agents, contractors, trustees or otherwise and either alone or in conjunction with others;
(aa) do all such other things as are incidental or conducive to the attainment of the above objects and of the objects set out in the letters patent and supplementary letters patent.
14(2)All or any of the powers set out in subsection (1) may be withheld by the letters patent or supplementary letters patent.
14(3)Nothing in this section prevents the inclusion in the letters patent or supplementary letters patent of a company of other powers in addition to or in modification of the powers mentioned in subsection (1).
R.S., c.33, s.14; 1956, c.24, s.1
PRIVATE INVESTMENT
HOLDING COMPANIES
Letters patent
15(1)An application for incorporation may set forth that the applicants desire to become incorporated as a private investment holding company for the following purposes only,
(a) to hold by way of investment or for personal use any real or personal property whatsoever;
(b) for purposes incidental to such holding to purchase or otherwise acquire and to sell or otherwise dispose of any such real or personal property;
(c) for purposes incidental to such holdings or purchase or sale, to draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants and other negotiable or transferable instruments;
(d) to make gifts to any person including a shareholder if and to the extent that such gift is approved at a special general meeting of shareholders of the company by the unanimous affirmative vote of all the shareholders of the company and if all creditors of the company have consented thereto;
(e) to do all such other acts or things as are incidental or conducive to or consequential upon the attainment of the above objects.
15(2)The letters patent incorporating such company shall set forth that the company is incorporated as a private investment holding company solely for the purposes hereinbefore set out and such company does not have or possess any powers other than those expressed in the letters patent.
15(3)Section 14 does not apply to such company.
15(4)The fees payable to the Minister under the Corporations Tax Act are not payable in respect of such company.
15(5)Repealed: 1981, c.12, s.4
15(6)Such companies are subject to a filing fee under section 126 of not more than twenty-five dollars per year.
15(7)Supplementary letters patent may be issued to a company heretofore incorporated by letters patent in this Province granting to such company the powers in this section set out in lieu of any other powers possessed by it and thereupon subsections (3), (4) and (6) of this section apply to such company.
R.S., c.33, s.15; 1957, c.26, s.2; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.4
FISHING, SPORTING OR
LITERARY CLUBS
Share transfer restrictions
16(1)In any application for letters patent for the incorporation of a fishing, sporting or literary club or association, the petition may, notwithstanding anything contained in this Act, ask for the embodying in the letters patent of a provision, which shall be therein inserted, that the shares of the capital stock of the club or association are not transferable to a person not then being a member of, and shareholder in, the club until the name of the proposed transferee or member has been first submitted for the approval of the existing shareholders or members, and approved in such manner as may in such petition be set forth, or as may be prescribed by the by-laws of the club or association when incorporated; and if such provision is embodied in the letters patent, it is not, unless otherwise provided in the letters patent, subject to repeal or alteration by by-law.
16(2)In case the transfer of the shares of the club or association is prohibited as in subsection (1) mentioned, no transfer of such shares may be made, otherwise than in conformity with the condition prescribed, so as to entitle the transferee thereof to membership in the club or association, or to any rights, benefits or privileges in respect of such shares in the said association.
R.S., c.33, s.16
Assessment of members
17(1)At any meeting of such club or association duly called for the purpose, a by-law may be passed to authorize the making of assessments upon its members for such sum or sums as are deemed necessary for the maintenance and support of the association, and prescribing the mode in which such assessment shall be made and paid, and how payment thereof may be enforced and what penalties, if any, as respects loss of membership and forfeiture of shares attaches to non-payment of such assessments.
17(2)The liability of members to be assessed for the purposes aforesaid attaches, if the by-law so prescribes, to membership in the association, whether the stock of the association is fully paid up or otherwise, and is a liability upon all members of the association, independent of, and in addition to, the liability at law in respect of unpaid stock.
R.S., c.33, s.17
Company without capital stock
18(1)In any application for the incorporation of a company for charitable, philanthropic, temperance, religious, social, political, literary, educational, athletic or other like purposes or for the purpose of promoting economic development, or for the incorporation of a project company or an agricultural association, the application may, notwithstanding anything contained in this Act, ask for the embodying in the letters patent, which in such case shall be therein inserted, that the company shall hold all property both real and personal, and the profits and income arising therefrom, acquired by it by purchase, gift, bequest or otherwise in trust for the objects and purposes for which the company may be incorporated, and that no dividends shall be declared or paid on any capital stock of the company.
18(2)When in the application for incorporation of any company for charitable, philanthropic, temperance, religious, social, political, literary, educational, athletic or other like purposes or for the purpose of promoting economic development, or for the incorporation of a project company or an agricultural association, the applicants apply for incorporation without capital stock, the Director may by letters patent constitute the applicants and others who may become members thereof, a company with all the rights and powers of a company under this Act for all or any of the specified purposes or objects and the following provisions (a) to (j) both inclusive, as well as all other provisions of this Act not inconsistent therewith, unless otherwise specified in the letters patent, are applicable to every company so incorporated hereunder without capital stock, namely:
(a) the incorporators and such other persons as become registered members in accordance with the provisions of the letters patent or by-laws of the company constitute the company;
(b) the company shall not have any capital stock or issue any share certificates;
(c) the company shall cause a list of its members to be kept in a book to be provided for that purpose, which shall be known as the company registry, and shall at all times during business hours be open to the inspection of all members of the company and the Director or his representative;
(d) the company may, in the absence of other express provisions therefor in the letters patent, make by-laws to determine the qualification for membership and for the removal of the names of those members who may cease to be qualified;
(e) any person whose name is duly entered on the company registry is and continues to be a member until his name is duly removed therefrom pursuant to the provisions of the letters patent or by-laws of the company;
(f) a member whose name is removed from the registry pursuant to the provisions of the letters patent or the by-laws ceases to be a member from the date of such removal;
(g) the company may acquire real and personal property of an unlimited cost value and may hold, manage and turn the same to account for the purposes or objects for which the company is incorporated and may lease, let, mortgage, pledge or sell the same or any part thereof;
(h) the company shall not carry on any business or trade for the profit of its members;
(i) the members of the company shall not as such be liable for any debts or obligations of the company;
(j) no by-law of the company for the removal of the name of a member from the company registry has any force or effect whatever until approved of by at least two-thirds of the votes cast at a special general meeting of the members of the company duly called for considering the same.
R.S., c.33, s.18; 1954, c.28, s.1, 2, 3; O.C. 64-312; 1978, c.D-11.2, s.7; 1993, c.51, s.1; 1997, c.61, s.2; 2002, c.15, s.11; 2002, c.29, s.3; 2017, c.55, s.5
RESPECTING PROJECT COMPANIES
1997, c.61, s.3
Incorporation of project companies
18.1(1)The Director shall not grant a charter by letters patent incorporating a project company unless the application for letters patent is accompanied by the written consent of the Minister of Transportation and Infrastructure, consenting to the grant of letters patent.
18.1(2)Notwithstanding subsection 4(1) and paragraph 6(1)(g), one or more persons may apply for a grant of letters patent incorporating a project company.
18.1(3)Notwithstanding any other provision of this Act, a project company is not required to have more than one shareholder or member.
18.1(4)Notwithstanding section 90, no director of a project company is required to be or become a shareholder or a member of the project company.
18.1(5)A project company may, subject to its letters patent or supplementary letters patent, by by-law
(a) establish different classes of members, in which case the terms and conditions applying to each class shall be set out in the by-law,
(b) establish that different classes of members may have different rights to elect or appoint directors,
(c) confer on some classes of members greater voting powers than on others,
(d) confer on different classes of members an exclusive right to elect one or more directors, and
(e) establish criteria for the appointment of one or more directors without election by the members or classes of members.
18.1(6)Section 77 of the Business Corporations Act applies to the directors and officers of a project company with the necessary modifications.
18.1(7)No project company shall pass a by-law authorizing an application for supplementary letters patent without first obtaining the written consent of the Minister of Transportation and Infrastructure, consenting to the proposed by-law.
18.1(8)Notwithstanding subsection 35.2(1), a project company applying to the Director for leave to surrender its charter shall provide with the application the written consent of the Minister of Transportation and Infrastructure, consenting to the surrender.
18.1(9)Notwithstanding section 23 of the Winding-up Act and notwithstanding paragraphs 14(1)(u) and 35.2(1)(b), a project company shall provide in its letters patent for the distribution of its assets on dissolution, surrender or winding-up and shall distribute them in accordance with those provisions.
1997, c.61, s.3; 2002, c.29, s.3; 2003, c.15, s.1; 2010, c.31, s.28; 2023, c.2, s.168
RESPECTING ELECTRICITY, WATER, GAS AND
SEWERAGE COMPANIES
Incorporation of public utilities
19(1)Upon application in the manner prescribed by this Act, and upon the publication once a week for four consecutive weeks in a daily newspaper published in the city, town or county within which the works of the company are to be conducted or carried on, and if no daily newspaper is published therein, then in any newspaper having general circulation therein, for the grant of letters patent for the incorporation of a company with the rights, franchises and privileges in and by this section authorized to be granted, the Lieutenant-Governor in Council may, if the same appears to be proper, necessary and incident to the purposes and objects for which the proposed company is to be incorporated, and upon such conditions as the Lieutenant-Governor in Council may prescribe, authorize and empower the company, in and by its letters patent, to enter from time to time upon any public streets, roads, squares, open plots of ground or highways in any city or county in the Province, and break up and open such public roads, streets, squares, plots of ground or highways, or any part thereof, for the purpose of erecting and maintaining poles and posts, and stringing and maintaining wires for telegraph, telephone or electric light purposes, and for renewing and repairing the same, and for the placing and maintaining under ground, along or across such public streets, roads, squares, plots of ground or highways, streets, mains, pipes or conduits for the conveying of sewerage, water, steam or gas for motive power or for sanitary, heating or lighting purposes, and for renewing and repairing the same.
19(2)The company authorized by letters patent under this section to exercise any of the powers in this section specified, shall and may use, exercise, possess and enjoy such rights, privileges, franchises and powers, subject to such limitations and conditions as may be imposed upon the exercise thereof, as fully and completely as if the same had been specially granted to the company by Act of Assembly.
R.S., c.33, s.19
Supplementary letters patent
20The rights, privileges, franchises and powers mentioned in section 19 may be granted by the Director, with the approval of the Lieutenant-Governor in Council, by supplementary letters patent to a company incorporated under the provisions of any Act of the Legislature, upon application for such additional powers and franchises, if the application is made in the manner prescribed by this Act and the privileges and powers applied for are purposes and objects for which the company is incorporated.
R.S., c.33, s.20; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Protection of public interest
21The Lieutenant-Governor in Council shall prescribe conditions for the protection of the public interests that shall be inserted in all letters patent, or supplementary letters patent issued under sections 19 and 20, and such conditions shall make provision as to
(a) the assent, supervision and control of the council of a local government or of a supervisor or road commissioner in a parish or part of a parish in respect to the time, mode and manner in which the powers granted under the authority of section 19 shall or may be used, exercised and enjoyed;
(b) the proper repairing of the streets, roads, squares and highways, upon which any breaking up, opening or excavation has taken place; and
(c) the location, height, dimensions and description of the posts or poles to be erected or placed upon any such street, public square, road or highway, and subject to any other conditions that the Lieutenant-Governor in Council may deem it expedient to impose upon the company in its exercise of the powers, privileges, rights and franchises granted under the authority of section 19 or 20 and as shall be embodied in such letters patent or supplementary letters patent.
R.S., c.33, s.21; 2005, c.7, s.13; 2017, c.20, s.37
Restriction on incorporation of public utility companies
22Nothing in this Act authorizes the grant of letters patent with the privileges and franchises mentioned in section 19 to any company for either of the purposes included within the exceptions contained in section 4.
R.S., c.33, s.22
Letters patent for subsisting company
23(1)A company heretofore incorporated for any purpose or object for which letters patent may be issued under this Act, whether under a special or a general Act, and now being a subsisting and valid company, may apply for letters patent to carry on its business under this Act, and the Director may issue letters patent incorporating the shareholders of the said company as a company under this Act.
23(2)Upon the issuing of such letters patent all the rights, property and obligations of the former company are transferred to the new company, and all proceedings may be continued or commenced by or against the new company that might have been continued or commenced by or against the old company.
23(3)It is not necessary in any such letters patent to set out the names of the shareholders.
23(4)After the issue of such letters patent the company shall be governed in all respects by the provisions of this Act, except that the liability of the shareholders to creditors of the old company shall remain as at the time of the issue of the letters patent.
R.S., c.33, s.23; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.12; 2002, c.29, s.3
Extension of powers for subsisting company
24(1)If a subsisting company applies for the issue of letters patent under this Act, the Director may by the letters patent, extend the powers of the company to such other objects, for which letters patent may be issued under this Act, as the applicant desires and as the Director thinks fit to include in the letters patent.
24(2)Such application, so far as it relates to additional powers, is subject to the provisions of section 45.
R.S., c.33, s.24; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
First directors for subsisting company
25The Director may in any letters patent issued under this Act to any subsisting company name the first directors of the new company, and the letters patent may be issued to the new company by the name of the old company or by another name.
R.S., c.33, s.25; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Letters patent for extra-provincial company
26(1)Any company incorporated under the laws of any jurisdiction other than New Brunswick for any of the purposes and objects for which letters patent may be issued under this Act incorporating a club or association referred to in section 16 or a company referred to in section 18 and being at the time of the application a subsisting and valid company, may apply for letters patent under this Act and the Director, upon receiving satisfactory evidence that the Act of incorporation or charter of the company so applying is valid and subsisting and that the company is authorized by the laws of the jurisdiction in which it was incorporated and that no public interest in the Province will be prejudiced, may issue letters patent continuing such company as a company under this Act but limiting, if necessary, the purposes, objects and powers of the said company to such purposes, objects and powers as might have been granted had the company been originally incorporated under this Act; and thereupon the company is continued and is a body corporate and politic organized under the laws of this Province.
26(1.1)Notwithstanding any other provision of this Act or any provision of the Business Corporations Act, a body corporate that was incorporated under this Act and was continued as a corporation under paragraph 2(1)(c) of the Business Corporations Act may, if that body corporate was, immediately before it was continued under the Business Corporations Act, a fishing, sporting or literary club or association or a company incorporated for charitable, philanthropic, temperance, religious, social, political, literary, educational, athletic or other like purpose, and is at the time of the application a subsisting and valid corporation under the Business Corporations Act, apply for letters patent under this Act, and the Director may, upon receiving satisfactory evidence that the body corporate so applying is a valid and subsisting corporation under the Business Corporations Act and that no public interest in the Province will be prejudiced, issue letters patent continuing it as a company under this Act, but limiting the purposes, objects and powers of the company to such purposes, objects and powers for which letters patent may be issued under this Act.
26(1.2)The letters patent issued under subsection (1.1) shall contain the provisions for which the petition referred to in subsection 16(1) or the application referred to in subsection 18(1), as the case may be, may ask to be embodied in the letters patent.
26(1.3)On the date specified in the letters patent issued under subsection (1.1), the body corporate is continued as a company under this Act.
26(1.4)A body corporate that applies for letters patent under subsection (1.1) is not required to comply with section 27.
26(2)It is not necessary in any such application or in any such letters patent to set out the names of the shareholders.
26(3)After the issue of such letters patent the company shall be governed in all respects by the provisions of this Act and has all the ancillary and other powers given to a company incorporated under this Act.
26(4)All rights of creditors and others against the property, rights and assets of a company continued under this section and all liens upon its property, rights and assets are unimpaired by such continuation and none of its rights or property or other rights and none of its contracts or obligations shall be prejudicially affected by such continuation, nor shall the company be deemed to have been liquidated or dissolved.
R.S., c.33, s.26; 1966, c.40, s.1; 1978, c.D-11.2, s.7; 1981, c.12, s.5; 1989, c.9, s.1; 2002, c.15, s.13; 2002, c.29, s.3; 2023, c.2, s.168
Filing with Director for extra-provincial company
27Every company desirous of obtaining letters patent under section 26 shall first file with the Director a certified copy of the charter or Act incorporating the company, and shall designate the place in New Brunswick where its principal office will be situated and the name of the agent or manager in New Brunswick authorized to represent the company and to accept process in all suits and proceedings against the company for any liabilities incurred by the company therein.
R.S., c.33, s.27; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Publication of letters patent for extra-provincial company
28Notice of the issue of letters patent under section 26 shall be published in The Royal Gazette, and the cost of notice shall be paid by the applicants.
R.S., c.33, s.28
Filing of returns for extra-provincial company
29Every company to which letters patent under section 26 have been granted shall, when so required, make a return to the Director of the names of its shareholders, the amount of its paid-up capital and the value of its real and personal estate held in New Brunswick, and in default of making the return within three months, the letters patent may be cancelled.
R.S., c.33, s.29; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Application for continuance
29.1(1)Subject to subsection (4), a company incorporated by letters patent or by special Act may, if it is authorized by the shareholders in accordance with this section and if it establishes to the satisfaction of the Director that its proposed continuation in another jurisdiction will not adversely affect creditors or shareholders of the company, apply to the appropriate official or public body of another jurisdiction requesting that the company be continued as if it had been incorporated under the laws of the other jurisdiction.
29.1(2)An application for continuance is authorized when two-thirds of the shareholders voting thereon have approved of the continuance.
29.1(3)Upon receipt of a notice satisfactory to him that the company has been continued under the laws of another jurisdiction, the Director shall cause a notice to be published in The Royal Gazette declaring that the company is discontinued and this Act ceases to apply to the company on the date shown in that notice of discontinuance.
29.1(4)A company shall not apply to be continued as a company under the laws of another jurisdiction unless those laws provide in effect that
(a) the property of the discontinued company continues to be the property of the continued company;
(b) the continued company continues to be liable for the obligations of the discontinued company;
(c) an existing cause of action, claim or liability to prosecution is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the discontinued company may be continued to be prosecuted by or against the continued company; and
(e) a conviction against the discontinued company may be enforced against the continued company or a ruling, order or judgment in favour of or against the discontinued company may be enforced by or against the continued company.
1981, c.12, s.6; 1991, c.27, s.10; 2002, c.15, s.14; 2002, c.29, s.3
Repealed
30Repealed: 1981, c.12, s.7
1981, c.12, s.7
MERGER
Letters patent for merged company
31(1)Any two or more companies may amalgamate and continue as one company.
31(2)The companies proposing to amalgamate may enter into an agreement for the amalgamation prescribing the terms and conditions of the amalgamation, the mode of carrying the amalgamation into effect and stating the name of the amalgamated company, the names, callings and places of residence of the first directors thereof and how and when the subsequent directors are to be elected with such other details as may be necessary to perfect the amalgamation and to provide for the subsequent management and working of the amalgamated company, the authorized capital of the amalgamated company and the manner of converting the authorized capital of each of the companies into that of the amalgamated company.
31(3)The agreement shall be submitted to the shareholders of each of the amalgamating companies at general meetings thereof called for the purpose of considering the agreement and if three-fourths of the votes cast at each such meeting are in favour of the adoption of the agreement that fact shall be certified upon the agreement by the secretary of each of the amalgamating companies under the corporate seal thereof.
31(4)If the agreement is adopted in accordance with subsection (3), the amalgamating companies may apply jointly to the Director for letters patent confirming the agreement and amalgamating the companies so applying and on and from the date of the letters patent such companies are amalgamated and are continued as one company by the name in the letters patent provided, and the amalgamated company possesses all the property, rights, privileges and franchises and is subject to all liabilities, contracts, disabilities and debts of each of the amalgamating companies.
1954, c.28, s.4; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.15; 2002, c.29, s.3
CHANGE OF COMPANY NAME
Name change by supplementary letters patent
32If it is made to appear to the satisfaction of the Director that the name of a company given by original, supplementary, or reissued letters patent under this Act, or incorporated by special Act, is the same as the name of an existing incorporated or unincorporated company, or so similar thereto as to be liable to be confounded therewith, the Director may, after notice to the company of his intention, direct the issue of supplementary letters patent, reciting the former letters and changing the name of the company to some other name that shall be set forth in the supplementary letters patent.
R.S., c.33, s.31; O.C. 64-312; 1978, c.D-11.2, s.7; 1984, c.20, s.1; 2002, c.29, s.3
Notice of change of name
33(1)Where a company incorporated by letters patent or by special Act is desirous of adopting another name, it shall pass a by-law authorizing an application to that effect to the Director who, upon being satisfied that the change desired is not for any improper purpose or otherwise objectionable, may direct the issue of supplementary letters patent, reciting the former letters patent or the special Act, and changing the name of the company to some other name, that shall be set forth in the supplementary letters patent.
33(2)Notice of the issue of such supplementary letters patent shall be published in The Royal Gazette, and the cost of the notice shall be paid by the applicant.
R.S., c.33, s.32; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Effect of name change on actions
34No alteration of name under section 32 or 33 affects the rights or obligations of the company, and all proceedings may be continued or commenced by or against the company under its new name that might have been continued or commenced by or against the company under its former name.
R.S., c.33, s.33
REISSUANCE OF LETTERS PATENT IN
THE OTHER OFFICIAL LANGUAGE
Reissuance of letters patent
34.1(1)Where letters patent have been issued to a company under section 16 or 18 in one of the official languages and that company is desirous of obtaining like letters patent in the official language other than that in which they were originally issued, the company may make application for the reissuance of the letters patent and any supplementary letters patent by providing the Director with
(a) a copy of a by-law authorizing the application, and
(b) a translation of the letters patent and any supplementary letters patent issued to the company verified in a manner satisfactory to the Director.
34.1(2)Before the Director reissues the letters patent and any supplementary letters patent the applicant shall establish to the satisfaction of the Director that
(a) the by-law authorizing the application has been duly passed by the company, and
(b) the translation of the letters patent and any supplementary letters patent correctly sets out, without substantive change, the provisions of the original letters patent and any supplementary letters patent
and for such purposes the Director shall take any requisite evidence in writing, by oath or affirmation, or by statutory declaration under the Evidence Act, and shall keep record of such evidence so taken.
34.1(3)The Director may, on being satisfied with the evidence provided in accordance with subsection (2), reissue the letters patent and any supplementary letters patent in the official language other than that in which the letters patent and any supplementary letters patent were originally issued.
34.1(4)Where the Director reissues letters patent and any supplementary letters patent under subsection (3), those
(a) letters patent shall be deemed to have been issued on the date the original letters patent were issued,
(b) supplementary letters patent shall be deemed to have been issued on the date the original supplementary letters patent were issued, and
(c) letters patent and any supplementary letters patent shall supersede the original letters patent and any supplementary letters patent.
34.1(5)The reissuance of letters patent and any supplementary letters patent by the Director under subsection (3) does not affect the rights or obligations of the company.
34.1(6)If, after the reissuance of the letters patent and any supplementary letters patent, the name of the company differs from the name given to the company under the original letters patent or any supplementary letters patent the Director shall publish notice of the new name in The Royal Gazette and the cost of the notice shall be paid by the applicant at the time the application is made.
1984, c.20, s.2; 2002, c.29, s.3
SURRENDER AND FORFEITURE OF CHARTER
Forfeiture of charter
35(1)Subject to subsections (2) and (3), the Director may forfeit the charter of the company by issuing a certificate of dissolution under this section if a company
(a) has not commenced operation within three years after the date shown on its charter,
(b) has not carried on its operations for three consecutive years, or
(c) is in default in sending any fee, notice or document to the Director required by this Act.
35(2)The Director shall not dissolve a company under this section unless the Director has
(a) sent by ordinary mail notice of the decision to dissolve the company to the company at its head office or to its mailing address as indicated in the records of the Director, and
(b) published notice of the decision to dissolve the company in The Royal Gazette.
35(3)Publication in The Royal Gazette of the notice of the Director’s decision to dissolve a company shall be deemed to be notice to the company.
35(4)Sixty days after the notice of the Director’s decision to dissolve a company is published in The Royal Gazette, the Director may dissolve the company.
35(5)Unless cause to the contrary has been shown, the Director may, after the expiry of the period referred to in subsection (4), issue a certificate of dissolution and the company ceases to exist on the date shown in the certificate of dissolution.
R.S., c.33, s.34; 1956, c.24, s.2; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3; 2003, c.15, s.2
Revival of charter
35.1(1)The Director may, upon application of any interested party, and upon good cause being shown, revive any charter forfeited under section 35, upon compliance with such conditions as the Director may require.
35.1(2)The Lieutenant-Governor in Council may, in writing, direct the Director to revive the company whose charter has been forfeited and upon receiving such direction, the Director shall revive the charter of the company.
35.1(3)Where the Director acts under subsection (1) or receives a direction from the Lieutenant-Governor in Council under subsection (2), the Director shall issue a certificate of revival.
35.1(4)A company is revived on the date shown on the certificate of revival and thereafter the company, subject to the rights acquired by any person after its dissolution, has all the rights and privileges and is liable for the obligations that it would have had if it had not been dissolved.
2003, c.15, s.3
Surrender of charter
35.2(1)The charter of a company incorporated by letters patent or by special Act of the Legislature may be surrendered if the company proves to the satisfaction of the Director
(a) that a by-law has been enacted by the company’s board of directors and approved by at least two-thirds of its shareholders to surrender the company’s charter,
(b) that it has parted with its property, divided its assets rateably among its shareholders, and
(c) that it has no debts or liabilities, the debts or obligations of the company have been provided for or protected, or the creditors of the company or other persons holding the debts and liabilities of the company consent to the surrender of the charter.
35.2(2)Subject to subsection (1), the Director may accept a surrender of the charter and issue a certificate of dissolution, which may be dated as of the date the application is received by the Director or any later date, and the company ceases to exist on the date shown in the certificate of dissolution.
2003, c.15, s.3
Liability of company and others within two years after dissolution
35.3(1)Notwithstanding the dissolution of a company under this Act,
(a) a civil, criminal or administrative action or proceeding commenced by or against the company before its dissolution may be continued as if the company had not been dissolved,
(b) a civil, criminal or administrative action or proceeding may be brought against the company within two years after its dissolution as if the company had not been dissolved, and
(c) any property distributed to shareholders that would otherwise have been available to satisfy any judgment or order if the company had not been dissolved remains available for such purpose.
35.3(2)Service of a document on a company after its dissolution may be effected by serving the document upon a person shown in the last notice filed under subsection 87(6), or if no notice has been filed under that subsection, upon a person shown as a director in the letters patent.
35.3(3)Notwithstanding the dissolution of a company, a shareholder to whom any of its property has been distributed is liable to any person claiming under subsection (1) to the extent of the amount received by that shareholder upon such distribution, and an action to enforce such liability may be brought within two years after the date of dissolution of the company.
2003, c.15, s.3
Distribution of property of company to persons who cannot be found
35.4(1)Upon the dissolution of a company, the portion of the property distributable to a creditor or shareholder who cannot be found shall be either converted into money and paid to the Minister of Finance and Treasury Board or transferred, delivered or conveyed to the Crown in right of the Province.
35.4(2)A payment under subsection (1) shall be deemed to be in satisfaction of a debt or claim of such creditor or shareholder.
35.4(3)If at any time a person establishes that the person is entitled to any money paid to the Minister of Finance and Treasury Board under this section, the Minister of Finance and Treasury Board shall pay an equivalent amount to the person out of the Consolidated Fund.
2003, c.15, s.3; 2019, c.29, s.32; 2023, c.17, s.36
Vesting of property of company in Crown and effect of revival
35.5(1)Subject to section 35.3 and section 35.4, property of a company that has not been disposed of at the date of its dissolution vests in the Crown in right of the Province.
35.5(2)If a company is revived under section 35.1, any property other than money that vested in the Crown pursuant to subsection (1) and that has not been disposed of shall be returned to the company and there shall be paid to the company out of the Consolidated Fund
(a) an amount equal to any money received by the Crown pursuant to subsection (1), and
(b) where property other than money vested in the Crown pursuant to subsection (1) and that property has been disposed of, an amount equal to the lesser of
(i) the value of any such property at the date it vested in the Crown, and
(ii) the amount realized by the Crown from the disposition of that property.
35.5(3)If a company is revived under section 35.1, any property other than money to be returned to the company in accordance with subsection (2) shall vest in the company without any deed, bill of sale or other document from the Crown or any action by the Crown.
2003, c.15, s.3; 2023, c.17, s.36
GENERAL POWERS AND DUTIES OF THE
COMPANY
Powers in letters patent
36All powers given to the company by letters patent or supplementary letters patent shall be exercised subject to the provisions and restrictions contained in this Act.
R.S., c.33, s.35
Pre-incorporation rights
37The company is forthwith, upon incorporation under this Act, vested with all property and rights, real and personal, theretofore held by it or for it under any trust created with a view to its incorporation, and with all the powers, privileges and immunities, requisite or incidental to the carrying on of its undertaking, as if it was incorporated by a special Act embodying the provisions of this Act, and of the letters patent and supplementary letters patent issued to such company.
R.S., c.33, s.36; 1983, c.19, s.3
Loans to shareholders
38(1)A company shall not make a loan to any of its shareholders or directors or give whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of, or in connection with, a purchase made or to be made by any person of any shares in the company; but nothing in this section shall be taken to prohibit
(a) the lending of money by the company to its shareholders, other than directors, in the ordinary course of its business where the lending of money is part of the ordinary business of the company,
(b) the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling or assisting those persons to purchase or erect dwelling houses for their own occupation; and the company may take, from such employees, mortgages or other securities for the repayment of such loans,
(c) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase by trustees of fully paid shares in the capital stock of the company, to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company,
(d) the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling those persons to purchase fully paid shares in the capital stock of the company, to be held by themselves by way of beneficial ownership, or
(e) the making by a private company of a loan to a shareholder or director, with a view to enabling him to purchase shares in the capital stock of the company held by an existing shareholder or by a person entitled thereto by reason of the death or bankruptcy of a shareholder.
38(2)For the purpose of this section “private company” means a company as to which by letters patent or supplementary letters patent
(a) the right to transfer its shares is restricted,
(b) the number of its shareholders is limited to fifty, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were, while in that employment, and have continued after the determination of that employment to be shareholders of the company, two or more persons holding one or more shares jointly being counted as a single shareholder, and
(c) any invitation to the public to subscribe for any shares, bonds or debentures of the company is prohibited.
38(3)The powers under paragraphs (1)(c), (d), and (e) may be exercised by by-law.
R.S., c.33, s.37; 1983, c.19, s.4
HEAD OFFICE - MEETINGS
Head Office and shareholders meetings
39(1)The company shall at all times have its head office at a stated place in the Province, which shall be the legal domicile of the company in New Brunswick; the company may establish such other offices and agencies elsewhere as it deems expedient.
39(2)If, in the application for letters patent or supplementary letters patent, permission is sought to hold meetings, either annual or special or both, of the shareholders of the company outside the Province, such permission may be granted in the discretion of the Director, but the head office of the Company shall, notwithstanding such permission, be located within the Province.
39(3)If, in the application for letters patent or supplementary letters patent, permission is sought by the applicants, and the Director, by reason of the circumstances set forth in such application, deems it expedient so to do, he may by the letters patent or supplementary letters patent grant permission to the company to hold meetings of the directors outside the Province.
39(4)A company incorporated by Act of Assembly has the right by law to change the location of its head office in the Province as fully as if the same had been incorporated by letters patent so long as the head office is not located outside the limits of the Province.
39(5)The seal of the company shall be kept at its head office, but a duplicate seal or seals of the company may be authorized by by-law to be kept and used elsewhere.
39(6)Unless the letters patent otherwise provide, the directors of a company may change the place or address of the company’s head office.
39(7)Repealed: 2002, c.15, s.16
39(8)A company shall file with the Director, within fifteen days after any change in the place or address of its head office, a notice in the prescribed form.
R.S., c.33, s.38; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.8; 2002, c.15, s.16; 2002, c.29, s.3
Deeds without company seal
40Every deed that any person, lawfully empowered as its attorney in that behalf by the company, signs on behalf of the company and seals with his seal, is binding on the company, and has the same effect as if it was under the seal of the company.
R.S., c.33, s.39
Acts and contracts of agents of company
41(1)Every contract, engagement or bargain made, and every bill of exchange drawn, accepted or endorsed, and every promissory note and cheque made, drawn or endorsed on behalf of the company by any agent, officer or servant of the company within the apparent scope of his authority as such agent, officer or servant is binding upon the company.
41(2)It is not necessary in any case to have the seal of the company affixed to any such contract, agreement, engagement, bargain, bill of exchange, promissory note or cheque, or to prove that the same was made, drawn, accepted or endorsed, as the case may be, in pursuance of any by-law or special vote or order.
41(3)No person acting as such agent, officer or servant of the company is thereby subjected individually to any liability whatever to any third person.
R.S., c.33, s.40
Name of company
42The company shall have its name, which shall include the word “Limited” or “Limitée” or the abbreviation “Ltd.” or “Ltée”, and in the case of a non-trading company the word “Incorporated” or “Incorporée” or the abbreviation “Inc.”, mentioned in all notices, advertisements and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods, purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices and receipts of the company.
R.S., c.33, s.41; 2002, c.15, s.17
Name of company – company incorporated under laws of New Brunswick
42.1(1)Notwithstanding section 42, a company incorporated under the laws of New Brunswick shall carry on business using its proper corporate name or any name that it has registered under the Partnerships and Business Names Registration Act.
42.1(2)Repealed: 2008, c.11, s.8
1976, c.20, s.1; 1981, c.12, s.9; 1985, c.4, s.12; 2008, c.11, s.8
Supplementary letters patent
43A company incorporated by letters patent or by special Act may, by by-law approved by the votes of shareholders representing at least two-thirds of the votes cast at a special general meeting of the company duly called for considering the same, authorize the directors to apply for supplementary letters patent
(a) extending the powers of the company to such further or other purposes or objects for which a company may be incorporated under this Act,
(b) reducing, limiting, amending or varying such powers or any other provision of the letters patent or the supplementary letters patent issued to the company as are defined in such by-law,
(c) granting permission to hold shareholders’ or directors’ meetings outside the Province, or
(d) converting it into a company for which incorporation may be granted under section 18,
but this section applies only to a company incorporated for purposes or objects for which a company may be incorporated under this Act.
R.S., c.33, s.42; 1954, c.28, s.5, 6
Application for supplementary letters patent
44The directors may, at any time within six months after the passing of any such by-law, make application to the Director for the issue of such supplementary letters patent.
R.S., c.33, s.43; O.C.64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Content of application for supplementary letters patent
45Before such supplementary letters patent are issued, the applicants shall, if required by the Director, establish to the satisfaction of the Director the due passing of the by-law authorizing the application, and for that purpose the Director shall take any requisite evidence in writing, by oath or affirmation, or by statutory declaration under the Evidence Act, and shall keep of record any such evidence so taken.
R.S., c.33, s.44; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.18; 2002, c.29, s.3
Publication of supplementary letters patent
46(1)Upon the due passing of such by-law being so established, the Director may grant supplementary letters patent, extending the powers of the company to all or any of the objects or reducing, limiting, amending or varying such powers or any provisions of the letters patent or supplementary letters patent as are defined in the by-law, or granting permission to hold shareholders’ or directors’ meetings outside the Province; and notice thereof in the form prescribed by regulation shall be forthwith published by the Director in The Royal Gazette, and the cost of such publication shall be paid by the applicants.
46(2)From the date of the supplementary letters patent, the undertaking of the company extends to and includes the further or other purposes or objects set out in the supplementary letters patent as fully as if such further or other purposes or objects were mentioned in the original letters patent.
R.S., c.33, s.45; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Confirmation of by-law to change supplementary letters patent
47No by-law that has the effect of increasing or decreasing the capital of the company, or otherwise varying any term or provision of letters patent or supplementary letters patent of the company, is valid or shall be acted upon until confirmed by supplementary letters patent.
R.S., c.33, s.46
Compromise between company and shareholders
48(1)Where a compromise or arrangement is proposed between a company and its shareholders, or any class of them, affecting the rights of shareholders or any class of them under the company’s letters patent or supplementary letters patent or by-laws, a judge of the Court may on application in a summary way of the company or of any shareholder order a meeting of the shareholders of the company or of any class of shareholders, as the case may be, to be summoned in the manner that the judge directs.
48(2)If the shareholders or class of shareholders, as the case may be, present in person or by proxy at the meeting, by three-fourths of the shares of each class represented and voted agree to the compromise or arrangement either as proposed or as altered or modified at such meeting called for the purpose, the compromise or arrangement may be sanctioned by a judge as aforesaid, and if so sanctioned the compromise or arrangement and any reduction or increase of share capital and any provision for the allotment or disposition thereof by sale or otherwise as therein set forth, may be confirmed by supplementary letters patent, which are binding on the company and the shareholders or class of shareholders, as the case may be.
48(3)Where at the meeting called as hereinbefore provided dissentient votes are cast by shareholders of one or more classes affected, and where, notwithstanding such dissentient votes, the compromise or arrangement is agreed to by the holders by three-fourths of each class represented, it is necessary, unless the judge in his discretion otherwise orders, that the company notify each dissentient shareholder in the manner prescribed by the judge of the time and place when application will be made to the judge for the sanction of the compromise or arrangement.
48(4)The expression “arrangement” as used in this section shall be construed as extending to any reorganization of the share capital of the company including, without limiting the foregoing, the consolidation of shares of different classes, the division of shares of different classes, the conversion of shares into shares of another class or classes and the modification of the provisions attaching to shares of any class or classes and as including an amalgamation or reconstruction as hereinafter defined which expression “amalgamation or reconstruction” means an arrangement pursuant to which a company, in this subsection called “the transferor company,” transfers or sells or proposes to transfer or sell to any other company, in this subsection called “the transferee company”, the whole or a substantial part of the business and assets of the transferor company for a consideration consisting in whole or in part of shares, debentures or other securities of the transferee company and either, any part of such consideration is proposed to be distributed among shareholders of the transferor company of any class, or the transferor company proposes to cease carrying on the business or part of its business so sold or transferred or proposed to be sold and transferred.
48(5)This section shall be construed as enabling only.
R.S., c.33, s.47; 1979, c.41, s.20
LIABILITY OF SHAREHOLDERS
Liability of shareholders
49(1)The shareholders of the company as such are not responsible for any act, default or liability of the company, or for any engagement, claim, payment, loss, injury, transaction, matter or thing relating to or connected with the company.
49(2)The liability of a shareholder in respect of any share held by him in the company, in respect of which he is liable as a shareholder, is limited
(a) in the case of a share with nominal or par value to the amount unpaid thereon;
(b) in the case of a share without nominal or par value to the amount of the consideration for which the share was issued by the company that is unpaid thereon.
R.S., c.33, s.48
Liability of shareholders to creditors
50(1)Every shareholder, until the balance of the amount at which his shares were issued is paid up, is individually liable to the creditors of the company to an amount equal to that not paid thereon; but he is not liable to an action therefor by any creditor until the creditor has obtained and enforced judgment against the company and the judgment is not wholly satisfied.
50(2)The unsatisfied amount of the judgment against the company, not exceeding the amount unpaid on his shares, as aforesaid, is the amount recoverable, with costs, from such shareholder.
50(3)Any amount so recoverable, if paid by the shareholder, shall be considered as paid on his shares.
R.S., c.33, s.49; 2013, c.32, s.6
Action by creditors
51A shareholder may plead by way of defence in whole or in part to any action by a creditor under section 50 any set-off that he can set up against the company, except a claim for unpaid dividends, or a salary or allowance as president or director of the company.
R.S., c.33, s.50
Liability of executor, trustee, or guardian
52(1)No person, holding stock in the company as an executor, tutor, curator, guardian or trustee of or for any person named in the books of the company as being so represented by him, is personally subject to liability as a shareholder; but the estate and funds in the hands of such person are liable in like manner, and to the same extent, as the testator or intestate would be if living, or the minor, ward or interdicted person, or the person interested in the trust fund would be if competent to act and holding the stock in his own name.
52(2)No person holding such stock as collateral security is personally subject to such liability, but the person pledging the stock shall be considered for the purpose of such liability as holding the same and is liable as a shareholder accordingly.
R.S., c.33, s.51
Voting of shares by executor, trustee, or pledgee
53Every such executor, curator, guardian or trustee shall represent the stock held by him at all meetings of the company and may vote as a shareholder; and every person who pledges his stock may represent the same at all such meetings, and, notwithstanding such pledge, vote as a shareholder.
R.S., c.33, s.52
PROSPECTUS
Contents of prospectus
54(1)Every prospectus of the company, and every notice inviting persons to subscribe for shares in the company, shall contain
(a) the name and location of the company,
(b) a statement showing in full detail the plan upon which the company proposes to transact business,
(c) a copy of, or reference to, all contracts that the company proposes to make or has made with its subscribers or promoters or with any director, and
(d) an itemized account of the financial condition and of the assets and liabilities of the company.
54(2)Every such prospectus or notice that does not comply with this section shall, with respect to any person who takes shares in the company on the faith of such prospectus or notice, be deemed fraudulent on the part of the officers of the company who issue such prospectus or notice.
R.S., c.33, s.53
CAPITAL STOCK
Transfer of shares
55(1)The stock of the company is personal estate and is transferable on the books of the company in the manner and subject to all the conditions and restrictions prescribed by this Act, the special Act or by the letters patent or supplementary letters patent or by the by-laws of the company.
55(2)Nothing herein shall be construed to prevent the seizure and sale of any such stock under the Enforcement of Money Judgments Act.
R.S., c.33, s.55; 2002, c.15, s.19; 2013, c.32, s.6
Allotment of shares
56In so far as the stock of the company or any increased amount thereof is not allotted by the letters patent or the supplementary letters patent and where no other definite provision is made by the letters patent or supplementary letters patent the stock shall be allotted at such times and in such manner as the directors by by-law prescribe.
R.S., c.33, s.56
Issue of shares
57(1)A by-law authorizing the issue or allotment of any portion of the unissued stock of the company for the payment of the president or any director is valid if the by-law has been confirmed at an annual meeting or a general meeting duly called for the purpose.
57(2)A by-law authorizing the issue, allotment or sale of any part of the unissued stock of the company to a dealer registered under the Securities Act at a discount is valid if the by-law has been confirmed at an annual meeting or a general meeting of the shareholders duly called for the purpose, and if the amount of the discount has been approved by the Executive Director of Securities appointed under the Financial and Consumer Services Act.
R.S., c.33, s.57; 2004, c.S-5.5, s.221; 2006, c.E-9.18, s.94; 2013, c.31, s.6
Creation of preferred or deferred shares
58(1)The directors of the company, where no provision is made by letters patent or supplementary letters patent for the creation of either preferred stock or deferred stock, may make by-laws
(a) for creating and issuing any part of the capital stock as preferred stock or deferred stock, giving the same such preference and priority with respect to dividends and in any other respect over ordinary stock or other classes of preferred stock or deferred stock, and also prescribing such restrictions with respect to voting rights and in any other respect as is by such by-law declared, and
(b) for the conversion of preference shares into common shares or any class of shares into any other class.
58(2)Such by-laws may provide that the holders of shares of such preferred or deferred stock have the right to select a certain stated proportion of the Board of Directors or may give them such other control or may so limit their control over the affairs of the company as is considered expedient or may provide for the purchase or redemption of such shares by the company as therein set out; but any term or provision of such by-laws; whereby the rights of holders of such shares are limited or restricted, shall be fully set out in the certificate of such shares, and in the event of any such limitations and restrictions not being so set out they shall not be deemed to qualify the rights of the holders thereof.
58(3)Unless preference shares or deferred shares are issued subject to redemption or conversion, they are not subject to redemption or conversion without the consent of the holders thereof.
58(4)No such by-law has any force or effect whatever until after it has been sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders of the company duly called for considering the same, and been confirmed by supplementary letters patent.
R.S., c.33, s.58
Rights of preferred shares
59(1)Holders of shares of preferred stock are shareholders within the meaning of this Act, and in all respects possess the rights and are subject to the liabilities of shareholders, but in respect of dividends, and in any other respect as authorized by this Act, they are, as against the ordinary shareholders, entitled to the preferences and rights and subject to the restrictions and limitations given by the letters patent or supplementary letters patent.
59(2)Where preference shares or deferred shares are issued subject to redemption, purchase for cancellation or conversion, they shall not be redeemed, purchased for cancellation or converted until they have been paid up in full.
59(3)Where preference shares are redeemed or purchased for cancellation by the company they are thereby cancelled, and the authorized and the issued capital of the company is thereby decreased.
R.S., c.33, s.59; 1954, c.28, s.7
Notice of redemptions of preferred shares
60(1)Where a company, any of whose shares are issued subject to redemption, purchase for cancellation or conversion, applies for supplementary letters patent, no step shall be taken towards the issue of the supplementary letters patent until the company files with the application a notice under the hand of the secretary and the seal of the company setting out the number of shares that have been redeemed, purchased for cancellation or converted and the class or classes thereof into which the shares were converted, and the date thereof, since the issue of the letters patent, or of the last supplementary letters, if any, as the case may be.
60(2)Where no shares of the company have been redeemed, purchased for cancellation or converted, the notice shall so state.
1960, c.16, s.1
Shares held in trust
61(1)The company is not bound to see to the execution of any trust, whether express, implied or constructive, in respect of any share.
61(2)The receipt of the shareholder in whose name the share stands in the books of the company is a valid and binding discharge to the company for any dividend or money payable in respect of such share whether notice of such trust has been given to the company or not.
61(3)The company is not bound to see to the application of the money paid upon such receipt.
R.S., c.33, s.60
CHANGES IN CAPITAL SET-UP
Consolidation of par-value shares
62(1)The directors may, at any time, when the par value of the existing shares of the company is less than one hundred dollars each, make a by-law consolidating them into shares of a larger par value; but no such consolidated share shall exceed the par value of one hundred dollars.
62(2)For the purpose of such consolidation, the company has the power to purchase fractions of shares, and is bound to sell any shares held from such purchases within two years after the purchase.
62(3)The directors may, at any time, make a by-law sub-dividing the existing shares into shares of a smaller amount or converting any class of shares into any other class or classes of shares.
R.S., c.33, s.61
Increase in number of shares
63(1)The directors may, at any time, make a by-law for increasing the capital stock of the company to any amount that they consider requisite for the due carrying out of the objects of the company.
63(2)Such by-law shall declare the number of the shares of new stock, and may prescribe the manner in which the shares of new stock shall be allotted.
63(3)In default of the manner of the allotment of the shares of the new stock being prescribed by such by-law, the control of such allotment vests absolutely in the directors.
R.S., c.33, s.62
Decrease in number of shares
64(1)The directors may, at any time, make a by-law for reducing the capital stock of the company to any amount that they consider advisable and sufficient for the due carrying out of the undertaking of the company.
64(2)Such by-law shall declare the number and value of the shares of the stock as so reduced, and the allotment thereof, or the manner in which the same shall be made.
64(3)The liability of the shareholders to persons who were, at the time of the reduction of the capital, creditors of the company remains the same as if the capital had not been reduced.
R.S., c.33, s.63
By-law re supplementary letters patent
65(1)No by-law for increasing or reducing the capital stock of the company, or for consolidating or subdividing or converting the shares, has any force or effect, until it is approved by the votes of shareholders representing at least two-thirds of the votes cast at a special general meeting of the company duly called for considering the same, and afterwards confirmed by supplementary letters patent.
65(2)At any time not more than six months after the approval of the by-law for increasing or reducing the capital stock of the company, or for consolidating or subdividing or converting the shares, the directors may apply to the Director for the issue of supplementary letters patent to confirm the by-law.
R.S., c.33, s.64; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Evidence on application for supplementary letters patent
66(1)The directors shall, with the application, produce a copy of the by-law, under the seal of the company, and signed by the president or vice-president and the secretary or other authorized officer, and establish to the satisfaction of the Director the due passage and approval of the by-law and the expediency and bona fide character of the increase or reduction of capital or conversion or subdivision or consolidation of shares, as the case may be, thereby provided for.
66(2)The Director shall, for that purpose, take any requisite evidence in writing, by oath or affirmation or by solemn declaration, and shall keep on record any evidence so taken.
R.S., c.33, s.65; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Publication of supplementary letters patent
67(1)Upon the due passage and approval of such by-law being so established, the Director may grant such supplementary letters patent.
67(2)Notice, in the form prescribed by regulation, of the granting of the supplementary letters patent, shall be forthwith given by the Director in The Royal Gazette, and the cost of publication of the notice shall be paid by the applicants.
67(3)From the date of such supplementary letters patent, the capital stock of the company is increased or reduced or the shares consolidated or subdivided or converted as the case may be, to the amount, in the manner and subject to the conditions set forth by such by-law.
67(4)The whole of the stock, as so increased or reduced or with such consolidated or subdivided or converted shares becomes subject to the provisions of this Act, in like manner, as far as possible, as if every part thereof had been or formed part of the stock of the company originally subscribed.
R.S., c.33, s.66; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
CALLS
Calls on shares
68The directors may make such calls upon the shareholders in respect of all money unpaid upon their respective shares as they shall think fit, at such times and places, and in such payments or instalments as the letters patent, or this Act, or the by-laws of the company may require and allow.
R.S., c.33, s.67
Time for calls on shares
69A call shall be deemed to have been made at the time when the resolution of the directors authorizing such call was passed.
R.S., c.33, s.68
Interest on calls on shares
70If a shareholder fails to pay any call due by him, on or before the day appointed for the payment thereof, he is liable to pay interest for the same, at the rate of six per cent per annum from the day appointed for payment to the time of actual payment thereof.
R.S., c.33, s.69
Advance payment for shares
71(1)The directors may receive from a shareholder willing to advance the same, beyond the sum then actually called for, all or any part of the amount remaining unpaid on shares held by such shareholder.
71(2)Upon the money, so paid in advance, or so much thereof as, from time to time, exceeds the amount of the calls then made upon the shares in respect of which the advance is made, the company may pay interest at a rate not exceeding eight per cent per annum that the shareholder who pays the sum in advance and the directors agree upon.
R.S., c.33, s.70
Forfeiture of shares
72(1)If after such demand or notice as is prescribed by letters patent, or by resolution of the directors, or by the by-laws of the company, any call made upon any share is not paid within such time as by such letters patent or resolution of the directors or the by-laws is limited in that behalf, the directors, in their discretion, by vote to that effect duly recorded in their minutes, may summarily declare forfeited any shares whereon such call is not paid.
72(2)Shares so declared forfeited thereupon become the property of the company, and may be disposed of as the company, by by-law or otherwise, prescribes.
72(3)Notwithstanding such forfeiture, the holder of such shares at the time of forfeiture continues liable to the creditors of the company at such time for the full amount unpaid on the shares at the time of forfeiture, less any sums that are subsequently received by the company in respect thereof.
R.S., c.33, s.71
Action for payment of shares
73(1)The directors may, instead of declaring forfeited any share or shares, enforce payment of all calls, and interest thereon by action in a court of competent jurisdiction.
73(2)In such action it is not necessary to set forth the special matter, but it is sufficient to declare that the defendant is a holder of one share or more, stating the number of shares, and is indebted in the sum of money to which the calls in arrear amount, in respect of one call or more, upon one share or more, stating the number of calls and the amount of each call, whereby an action has accrued to the company under this Act.
R.S., c.33, s.72
TRANSFER OF SHARES
Transfer register
74Except for the purpose of exhibiting the rights of parties to any transfer of shares towards each other and of rendering any transferee jointly and severally liable with the transferor to the company and its creditors, no transfer of shares unless made by sale under the Enforcement of Money Judgments Act or under order or judgment of a court of competent jurisdiction, is valid for any purpose whatever until entry of such transfer is duly made in the register of transfers; but as to the stock of any company listed and dealt with on any recognized stock exchange by means of stock certificates, commonly in use endorsed in blank, and transferable by delivery, such endorsation and delivery, except for the purpose of voting at meetings of the company, constitutes a valid transfer.
R.S., c.33, s.73; 1986, c.4, s.7; 2013, c.32, s.6
Transfer of unpaid shares
75No transfer of shares whereof the whole amount of the issue price has not been paid in shall be made without the consent of the directors.
R.S., c.33, s.74
Calls on unpaid shares
76No share is transferable until all previous calls thereon are fully paid in.
R.S., c.33, s.75
Transfer where shareholder indebted to company
77The directors may decline to register any transfer of shares belonging to any shareholder who is indebted to the company.
R.S., c.33, s.76
Close corporation
78(1)A company, by by-law passed by the directors and unanimously confirmed by all its shareholders at any general meeting, may provide that the company is a close corporation and that the shares of the capital stock or any class or classes thereof are not transferable to any person not being a shareholder of that class of share at the time such transfer is proposed to be made, until the name of the proposed transferee is submitted to the directors and they have given consent to the transfer or upon such other terms or conditions as may be provided by the by-law.
78(2)Where such a shareholder desires to dispose of his shares, it is lawful for the company to accept a surrender of the same as may be provided by such by-law, and forthwith to re-issue the same and pay for his shares the amount that was received upon such re-issue.
78(3)Such by-law, in all cases of close corporations, shall be noted on the stock certificate, and the stock certificate is not negotiable but is evidence only against the company that the party to whom the same is issued is at the time of the issue thereof a holder of shares in the company to the amount named in the certificate.
R.S., c.33, s.77
Dividend payments
79(1)A company may, pursuant to any by-law, close its transfer book for seven days previous to the payment of a dividend, not exceeding four times in any one year.
79(2)Any transfer of the shares or other interest of a deceased shareholder, made by his personal representative, is, notwithstanding such personal representative is not himself a shareholder, of the same validity as if he had been a shareholder at the time of his execution of the instrument of transfer.
79(3)If a transmission of shares or other securities of a company takes place by virtue of any testamentary act or instrument, or in consequence of an intestacy, and if the probate of the will or letters of administration or document testamentary, or other judicial or official instrument under which the title, whether beneficial or as trustee, or the administration or control of the personal estate of the deceased is claimed to vest, purports to be granted by any court or authority in Canada or in any foreign country, the probate of the will, the letters of administration, the document testamentary or the other judicial or official instrument or any authenticated copy thereof, or official extract therefrom, shall together with a declaration in writing showing the nature of such transmission and signed and executed by the person or persons claiming by virtue thereof, be produced and deposited with the manager, secretary, treasurer or other officer or transfer agent named by the directors for the purpose of receiving the same.
79(4)Subject to the provisions of the Succession Duty Act, chapter 12 of 24 George V, such production and deposit is sufficient justification and authority to the company for paying the amount or value of any dividend, coupon, bond, debenture or obligation or share, or transferring or consenting to the transfer of any bond, debenture or obligation or share, in pursuance of and in conformity with such probate, letters of administration or other such document.
R.S., c.33, s.78; 2023, c.17, s.36
SHARE WARRANTS
Issue of share warrants
80(1)A company, if so authorized by its letters patent or supplementary letters patent and subject to the provisions thereof, may, with respect to any fully paid-up shares, issue under its common seal a warrant stating that the bearer of the warrant is entitled to the share or shares therein specified, and may provide by coupons or otherwise, for the payment of the future dividends on the share or shares included in the warrant, hereafter termed a share warrant.
80(2)A share warrant entitles the bearer thereof to the shares therein specified, and the shares may be transferred by delivery of the warrant.
80(3)The bearer of a share warrant is entitled, subject to the provisions and regulations respecting share warrants contained in the letters patent or supplementary letters patent, on surrendering it for cancellation, to have his name entered on the books of the company as the holder of the shares specified in the share warrant, and the company is responsible for any loss incurred by any person by reason of the company entering on the books of the company the name of the bearer of a share warrant, in respect of the shares therein specified, without the warrant being surrendered and cancelled.
80(4)The bearer of a share warrant may, if the provisions and regulations respecting share warrants so provide, be deemed to be a shareholder of the company, either to the full extent or for any purposes defined by such regulations, except that he is not qualified in respect of the shares specified in the warrant for being a director of the company.
80(5)On the issue of a share warrant the company shall remove from its books the name of the shareholder then entered therein as holding such share or shares as if he had ceased to be a shareholder, and shall enter in the books the following particulars, namely:
(a) the fact of the issue of the warrant,
(b) a statement of the shares included in the warrant, and
(c) the date of the issue of the warrant.
80(6)Until the warrant is surrendered, the above particulars shall be deemed to be the particulars required by this Act to be entered in the books of the company in respect of such share or shares, and, on the surrender, the date of the surrender shall be entered as if it were the date at which a person ceased to be a shareholder.
80(7)Unless the bearer of a share warrant is entitled to attend and vote at general meetings, the shares represented by such share warrant shall not be counted as part of the capital stock of the company for the purpose of a general meeting of shareholders.
R.S., c.33, s.79; 2002, c.15, s.20
BORROWING POWERS
Borrowing by-law
81(1)If authorized by by-law, sanctioned by a vote of not less than two-thirds of the votes cast at a general meeting duly called for considering the by-law, the directors may from time to time
(a) borrow money upon the credit of the company;
(b) limit or increase the amount to be borrowed;
(c) issue bonds, debentures, debenture stock or other securities of the company, and pledge or sell the same for such sums and at such prices as may be deemed expedient;
(d) hypothecate, mortgage or pledge the real or personal property or both including book debts and unpaid calls, rights, powers, undertakings and franchises of the company to secure any such bonds, debentures, debenture stock or other securities, and any money borrowed or any other liability of the company.
81(2)Any such by-law may provide for the delegation of such powers by the directors to such extent and in such manner as may be set out in the by-law.
81(3)A condition contained in a debenture, or in a deed for securing any debentures, whether issued or executed before or after the passing of this Act, is not invalid by reason only that thereby the debentures are made irredeemable, or redeemable, only on the happening of a contingency however remote, or on the expiration of a period however long, any rule of equity to the contrary notwithstanding.
81(4)Nothing contained in this section limits or restricts the borrowing of money by the company on bills of exchange, or promissory notes made, drawn, accepted or endorsed by or on behalf of the company.
R.S., c.33, s.80; 1960-61, c.29, s.2
Redemption of debentures
82(1)Where a company has redeemed any debentures previously issued, the company, unless the conditions of issue expressly otherwise provide, or unless the debentures have been redeemed in pursuance of any obligation on the company so to do, not being an obligation enforceable only by the person to whom the redeemed debentures were issued, or his assigns, has power to keep the debentures alive for the purposes of re-issue and, where a company has purported to exercise such a power, the company has power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place, and upon such a re-issue the person entitled to the debentures has the same rights and priorities as if the debentures had not previously been issued.
82(2)Where with the object of keeping debentures alive for the purpose of re-issue, they have, either before or after the passing of this Act, been transferred to a nominee of the company, a transfer from that nominee shall be deemed to be re-issue for the purposes of this section.
82(3)Where a company has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remained so deposited.
82(4)The re-issue of a debenture, or the issue of another debenture in its place, under the power by this section given to, or deemed to have been possessed by, a company, whether the re-issue or issue was made before or after the passing of this Act, shall not be treated as the issue of a new debenture, for the purposes of any provision limiting the amount or number of debentures to be issued.
82(5)Nothing in this section affects any power to issue debentures in the place of any debentures paid off, or otherwise satisfied or extinguished, reserved to a company by its debentures or the securities for the same.
R.S., c.33, s.81
Deposit with Minister of Finance and Treasury Board
2019, c.29, s.32
83(1)A company incorporated by letters patent or under special Act of the Legislature may, with the approval of a Judge given after hearing such parties as he thinks necessary to be heard, and with the consent of the Lieutenant-Governor in Council, deposit with the Minister of Finance and Treasury Board a sum of money or bonds or debentures of the Province, or of Canada, sufficient to provide for the retirement at maturity of any bonds or debentures issued by such company and for all interest accruing until such maturity.
83(2)Upon the deposit being made and the Judge and the Lieutenant-Governor in Council being satisfied that the sum of money or bonds or debentures deposited is adequate to provide for the retirement of such bonds or debentures at maturity, and that such sum with the interest thereon, and such bonds or debentures with the income thereof, are sufficient to provide for all interest accruing on the company’s bonds or debentures until maturity, the Lieutenant-Governor in Council may grant a certificate of such deposit under the hand and seal of the Minister of Finance and Treasury Board, which certificate shall recite the fact of such deposit being made.
83(3)The Judge is thereupon empowered to order and declare that the real and personal property of the company mortgaged as security therefor, is freed and discharged from such mortgage.
83(4)The order of the Judge may be registered in the registry office in any county where the company has property subject to such mortgage.
83(5)Upon the filing of the order in the registry office where the mortgage is filed as a bill of sale, all personal property covered by the mortgage, or bill of sale by way of mortgage, securing such bonds or debentures, and upon the registration of the order, all real estate of such company covered by such mortgage in the county where such order is registered is freed and discharged from the operation thereof.
83(6)If the mortgage is a trust mortgage for the purpose of securing an issue of bonds, the trustee for the bondholders may, upon production of such order made by the said judge, execute a release of the mortgaged property from the said mortgage which likewise may be entered of registry, and the mortgage may be delivered up by the trustee to the company and cancelled.
83(7)The Province shall receive such remuneration, for the services to be performed by the Department of Finance and Treasury Board under this section, as may be determined by the Lieutenant-Governor in Council.
83(8)Upon the application of a company having made a deposit pursuant to subsection (1), the Lieutenant-Governor in Council may permit the exchange of all or any of the money, bonds or debentures deposited by the company for all or any of the outstanding bonds or debentures of the company in respect of which the deposit was made, and as a condition of the exchange may require the payment or cause to be paid such adjustment of principal or interest as the Lieutenant-Governor in Council deems advisable, and any such bonds or debentures so exchanged for money, bonds or debentures held by the Lieutenant-Governor in Council on deposit shall forthwith be cancelled.
R.S., c.33, s.82; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3; 2019, c.29, s.32
DIVIDENDS
Impairment of capital
84No dividends shall be declared that will impair the capital of the company.
R.S., c.33, s.83
Stock dividends
85For the amount of any dividend that the directors may lawfully declare payable in money, they may issue therefor shares of the company as fully paid, or they may credit the amount of the dividend on the shares of the company already issued but not fully paid, and the liability of the holders of such shares thereon is reduced by the amount of such dividend, if the directors have been authorized to do so by a by-law that has been sanctioned by at least two-thirds of the votes cast at a special general meeting of the shareholders of the company duly called for considering the same, but any such by-law has no force or effect for more than one year from the date of its sanction.
R.S., c.33, s.84
Dividends and set-off
86The directors may deduct from dividends payable to a shareholder all sums of money due from him to the company, on account of calls or otherwise.
R.S., c.33, s.85
RECEIVERS AND RECEIVER-MANAGERS
1983, c.19, s.5
Court, defined
86.1For the purposes of sections 86.2 to 86.9, “Court” means The Court of King’s Bench of New Brunswick.
1983, c.19, s.5; 2008, c.11, s.8; 2023, c.17, s.36
Power of receiver
86.2A receiver of any property of a company may, subject to the rights of secured creditors, receive the income from the property and pay the liabilities connected with the property and realize the security interest of those on behalf of whom he is appointed, but, except to the extent permitted by the Court, he may not carry on the business of the company.
1983, c.19, s.5
Power of receiver-manager
86.3A receiver of a company may, if he is also appointed receiver-manager of the company, carry on any business of the company to protect the security interest of those on behalf of whom he is appointed.
1983, c.19, s.5
Cessation of directors powers
86.4If a receiver-manager is appointed by the Court or under an instrument, the powers of the directors of the company that the receiver-manager is authorized to exercise may not be exercised by the directors until the receiver-manager is discharged.
1983, c.19, s.5
Duty to act in accordance with direction of the Court
86.5A receiver or receiver-manager appointed by the Court shall act in accordance with the directions of the Court.
1983, c.19, s.5
Duty to act in accordance with instrument of appointment
86.6A receiver or receiver-manager appointed under an instrument shall act in accordance with that instrument and any direction of the Court made under section 86.8.
1983, c.19, s.5
Duty of care
86.7A receiver or receiver-manager of a company appointed under an instrument shall
(a) act honestly and in good faith, and
(b) deal with any property of the company in his possession or control in a commercially reasonable manner.
1983, c.19, s.5
Powers of the Court
86.8Upon an application by a receiver or receiver-manager, whether appointed by the Court or under an instrument, or upon an application by any interested person, the Court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order appointing, replacing or discharging a receiver or receiver-manager and approving his accounts;
(b) an order determining the notice to be given to any person, or dispensing with notice to any person;
(c) an order fixing the remuneration of the receiver or receiver-manager;
(d) an order requiring the receiver or receiver-manager, or a person by or on behalf of whom he is appointed, to make good any default in connection with the receiver’s or receiver-manager’s custody or management of the property and business of the company, or to relieve any such person from any default on such terms as the Court thinks fit, and to confirm any act of the receiver or receiver-manager;
(e) an order granting additional powers or restricting the exercise of any powers granted by the instrument appointing the receiver or receiver-manager or by previous order; and
(f) an order giving directions on any matter relating to the duties of the receiver or receiver-manager.
1983, c.19, s.5
Duties of receiver and receiver-manager
86.9A receiver or receiver-manager shall
(a) immediately notify the Director of his appointment or discharge who shall forthwith cause to be published in The Royal Gazette notice of such appointment or discharge;
(b) forthwith after his appointment and from time to time thereafter file with the Director a notice designating an office in New Brunswick where accounts of his administration shall be maintained;
(c) take into his custody and control the property of the company in accordance with the Court order or instrument under which he is appointed;
(d) open and maintain a bank account in his name as receiver or receiver-manager of the company for the money of the company coming under his control;
(e) keep detailed accounts of all transactions carried out by him as receiver or receiver-manager;
(f) keep accounts of his administration that shall be available at the office designated in paragraph (b) during usual business hours for inspection by the directors, and the directors shall have the right to make extracts therefrom;
(g) prepare at least once in every six-month period, after the date of his appointment, a financial account of his administration and, subject to any order of the Court, file a copy of it with the Director within sixty days after the end of each six-month period; and
(h) upon completion of his duties,
(i) render a final account of his administration,
(ii) send a copy of the final report to the Director who shall file it, and
(iii) send a copy of the final report to each director of the company.
1983, c.19, s.5; 2002, c.29, s.3
Repealed
86.10Repealed: 2008, c.11, s.8
1983, c.19, s.5; 2008, c.11, s.8
Application of sections 86.1 to 86.9
86.11Sections 86.1 to 86.9 shall only apply to receivers and receiver-managers appointed after the coming into force of these sections.
1983, c.19, s.5; 2008, c.11, s.8
DIRECTORS
Number and qualifications of directors
87(1)The affairs of the company shall be managed by a board of not less than three directors.
87(1.1)The directors of a company shall be shareholders or members of the company.
87(1.2)The following persons are disqualified from being a director of a company:
(a) anyone who is less than nineteen years of age;
(b) anyone who is of unsound mind and has been so found by a court in Canada or elsewhere;
(c) a person who is not an individual;
(d) a person who has the status of bankrupt; or
(e) a person convicted of an offence under the Criminal Code (Canada) or the criminal law of any jurisdiction outside of Canada
(i) in connection with the promotion, formation or management of a corporation, or
(ii) involving fraud,
unless three years have elapsed since the expiration of the period fixed for suspension of the passing of sentence without sentencing or since a fine was imposed, or unless the term of imprisonment and probation imposed, if any, was concluded, whichever is the latest, but the disability imposed by this paragraph ceases upon a pardon being granted.
87(2)The company may, by by-law, increase the number of its directors or may decrease the number to not less than three; but no by-law for either of said purposes is valid or shall be acted upon unless approved by a vote of at least two-thirds of the votes cast at an annual meeting or at a special general meeting of the shareholders duly called for considering the by-law.
87(3)Where such a by-law is approved at such meeting the by-law becomes effective and may be acted upon forthwith, unless prior to its so being acted upon a shareholder, or the representative of a shareholder, files with the secretary of the meeting a protest against the by-law, in which case the by-law does not become effective and shall not be acted upon unless or until a copy thereof certified under the seal of the company has been deposited with the Director and approved by him.
87(4)Where a by-law increasing the number of directors becomes effective as aforesaid, the meeting approving the by-law may elect the additional directors or in default thereof the board may appoint such additional directors.
87(5)The persons named as such in the letters patent are the directors of the company until replaced by others duly appointed in their stead.
87(6)A company shall forward to the Director, within fifteen days after a change is made amongst its directors, a notice in the prescribed form setting out the change and the Director shall keep that notice on record.
R.S., c.33, s.86; 1960-61, c.29, s.3, 4; 1978, c.D-11.2, s.7; 1981, c.12, s.10; 2002, c.15, s.21; 2002, c.29, s.3
Executive committee
88The board of directors of the company whenever it consists of more than six may, if authorized by by-law duly passed by the directors, and approved by at least two-thirds of the votes cast at an annual or at a special general meeting of shareholders duly called for considering the by-law, elect from its number an executive committee consisting of not less than three, which executive committee has power to fix its quorum at not less than a majority of its members and may exercise the powers of the board that are delegated by the by-law, subject to any restrictions contained in the by-law and to any regulations imposed from time to time by the directors.
R.S., c.33, s.87
Election of directors
89If, at any time, an election of directors is not made, or does not take effect at the proper time, the company is not held to be thereby dissolved, but such election may take place at a subsequent special general meeting of the company duly called for that purpose; and the retiring directors continue in office until their successors are elected.
R.S., c.33, s.88; 1991, c.27, s.10
Qualification of directors
90A person elected as a director, or appointed as a director to fill a vacancy, must at the time of his election or appointment or within one week thereafter, be or become a shareholder to the amount required by the by-laws of the company, and not in arrear in respect of any call thereon, and any director ceasing to be a shareholder thereupon forthwith ceases to be a director.
R.S., c.33, s.89
Term of office
91Directors shall be elected by the shareholders in general meeting of the company assembled at some place within New Brunswick, unless the letters patent or supplementary letters patent otherwise permit, at such times, in such manner and for such term, not exceeding two years, as the letters patent, or in default thereof, as the by-laws of the company prescribe.
R.S., c.33, s.90
Election of directors by minority shareholders
92Where at a meeting of a company, whether incorporated under this Act or under any other Act of the Legislature, there is to be elected a full board of directors, and there are present, or represented by proxy, and acting as a unit shareholders owning shares with voting rights bearing the same or a larger proportion to the whole allotted stock of the company with voting rights, that one director bears to the total number of directors, such shareholders acting as a unit have the right to elect one director, any law or by-laws of any company to the contrary hereof notwithstanding, but a shareholder claiming the above right of election shall, prior to the taking of the vote for the election of directors, deposit with the chairman or secretary of the meeting a written declaration under his hand stating his purpose of claiming the privileges of this section.
R.S., c.33, s.91
Voting by minority shareholders
93A shareholder claiming the privileges provided by section 92 shall not vote at the election of any director at the said meeting, except one for whom he is entitled to vote under that section.
R.S., c.33, s.92
Time and form of election
94In the absence of other provisions in that behalf in the letters patent or by-laws of the company,
(a) the election of directors shall take place yearly, and all the directors then in office shall retire, but, if otherwise qualified, they are eligible for re-election,
(b) every election of directors is by ballot,
(c) the directors have power to fill any vacancy occurring in the board,
(d) the directors shall elect from among themselves a president and, if they see fit, a vice-president of the company and may also appoint all other officers thereof.
R.S., c.33, s.93
Resolution of directors in writing
94.1(1)Subject to the letters patent and supplementary letters patent, a resolution in writing or counterparts of such a resolution, signed by all the directors entitled to vote on that resolution at a meeting of directors or a committee of directors, is as valid as if it had been passed at a meeting of directors or committee of directors duly called, constituted and held.
94.1(2)Every resolution or counterpart referred to in subsection (1) shall be kept with the minutes of the meetings of the proceedings of the directors or committee of directors.
1997, c.61, s.4
Meetings of directors by communication facilities
94.2A director may participate in a meeting of directors or of a committee of directors by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other if
(a) the by-laws so provide, or
(b) subject to the by-laws, all the directors of the company consent,
and a director participating in a meeting by those means shall be deemed for the purposes of this Act to be present at that meeting
1997, c.61, s.4
Indemnification of directors
95Any director, former director, officer or former officer of a company or his or her heirs, executors, estate and effects may, with the consent of the company given at any general meeting of the company, from time to time and at all times be indemnified and saved harmless out of the funds of the company from and against all costs, charges and expenses whatsoever that the director, former director, officer or former officer sustains or incurs in or about any action, suit or proceeding that is brought, commenced or prosecuted against him or her for or in respect of any act, deed, matter or thing whatsoever, made, done or permitted by him or her in or about the execution of the duties of his or her office, and also from and against all other costs, charges and expenses that the director, former director, officer or former officer sustains or incurs in or about or in relation to the affairs of the company, except costs, charges or expenses that are occasioned by his or her own wilful neglect or default.
R.S., c.33, s.94; 1997, c.61, s.5
POWERS OF DIRECTORS
Powers of directors
96(1)The directors may administer the affairs of the company in all things, and make or cause to be made for the company any description of contract that the company may by law enter into, and may make by-laws not contrary to law or to the letters patent of the company or to this Act, as to the following matters:
(a) the regulating of the allotment of stock, the making of calls thereon, the payment thereof, the issue and registration of certificates of stock, the forfeiture of stock for non-payment, the disposal of forfeited stock and of the proceeds thereof, and the transfer of stock;
(b) the declaration and payment of dividends;
(c) the amount of the stock qualifications of the directors, and their remuneration, if any;
(d) the appointment, functions, duties and removal of all agents, officers and servants of the company, the security to be given by them to the company and their remuneration;
(e) the time and place for the holding of the annual meetings of the company, the calling of meetings, regular and special, of the board of directors and of the company, the quorum, the requirements as to proxies, and the procedure in all things at such meetings;
(f) the imposition and recovery of all penalties and forfeitures not otherwise provided for in this Act;
(g) the conduct, in all other particulars, of the affairs of the company not otherwise provided for in this Act.
96(2)No by-law for the payment of the president or of any director is valid or shall be acted upon unless confirmed at an annual meeting or a special general meeting duly called for that purpose.
R.S., c.33, s.95
Period during which by-laws are in force
97The directors may repeal, amend or re-enact any such by-law, but every such by-law, excepting a by-law made respecting agents, officers and servants of the company, and every repeal, amendment or re-enactment thereof, unless in the meantime confirmed at a general meeting of the company duly called for that purpose, has force only until the next annual meeting of the company, and in default of confirmation thereat ceases from that time to have force.
R.S., c.33, s.96; 2002, c.15, s.22
LIABILITY OF DIRECTORS
AND OFFICERS
Liability for dividend payments
98If the directors of the company declare and pay any dividend when the company is insolvent, or any dividend, the payment of which renders the company insolvent, or impairs the capital thereof, they are jointly and severally liable, as well to the company as to the individual shareholders and creditors thereof, for all the debts of the company then existing and for all debts thereafter contracted during their continuance in office, respectively; but if any director present when such dividend is declared does forthwith, or if any director then absent does within twenty-four hours after he becomes aware of the declaration and is able so to do, enter on the minutes of the board of directors his protest against the declaration, and within eight days thereafter publishes such protest in at least one newspaper published at the place in which the head office or chief place of business of the company is situated or, if no newspaper is there published then in The Royal Gazette, such director may, thereby, and not otherwise, exonerate himself from such liability.
R.S., c.33, s.97
Liability on share transfer
99Where any transfer of shares not fully paid up has been made with the consent of the directors to a person who apparently is not of sufficient means to fully pay up such shares, the directors are jointly and severally liable to the creditors of the company, in the same manner and to the same extent as the transferring shareholder but for the transfer would have been; but if any director present when any such transfer is allowed does forthwith, or if any director then absent does within twenty-four hours after he becomes aware of the transfer and is able so to do, enter on the minute book of the board of directors his protest against the transfer, and within eight days thereafter publishes such protest in at least one newspaper published at the place in which the head office or chief place of business of the company is situated, or, if there is no newspaper there published then in The Royal Gazette, such director may thereby, and not otherwise, exonerate himself from such liability.
R.S., c.33, s.98
Liability for loans to shareholders
100If a loan is made by the company to a shareholder in violation of the provisions of this Act, all directors and officers of the company making the loan or assenting thereto are, until repayment of the loan, jointly and severally liable to the company, and also to the creditors of the company, for all debts of the company then existing, or contracted between the time of the making of the loan and the repayment thereof, such liability however not to exceed the amount of the loan.
R.S., c.33, s.99
MEETINGS
Annual meeting of shareholders
101There shall be a meeting of shareholders at least once every year at such time and place as may be fixed by the by-laws.
R.S., c.33, s.100
Calling of annual meeting
102Shareholders who hold one-tenth part in value of the voting stock of the company may at any time by written requisition and notice call a special meeting of the company for the transaction of any business specified therein.
R.S., c.33, s.101
Notice of meeting
103In the absence of other provisions in that behalf in the letters patent or by-laws of the company,
(a) notice of the time and place for holding a general meeting of the company shall be given at least fourteen days previous to the time specified in the notice for the meeting by ordinary mail or in some newspaper published in the place where the head office of the company is situate, or if there is no such newspaper then in the place nearest thereto in which a newspaper is published;
(b) at all general meetings of the company, each shareholder is entitled to give one vote for each share then held by him, and such votes may be given in person or by proxy, if such proxy is himself a shareholder; but no shareholder is entitled either in person or by proxy to vote at any meeting as holder of a share in respect of which any call or calls are payable and are unpaid;
(c) all questions proposed for the consideration of the shareholders at general meetings shall be determined by the majority of votes, and the chairman presiding at such meetings has the casting vote in case of an equality of votes;
(d) subject to the by-laws, if shares are held jointly by two or more persons any one of them present at a meeting may, in the absence of the others, vote thereon, and if more than one of them are present, or represented by proxy, they shall vote together on the shares jointly held.
R.S., c.33, s.102; 1983, c.19, s.6
Resolution of shareholders or members in writing
103.1(1)Subject to the letters patent and supplementary letters patent, a resolution in writing signed by all the shareholders or members entitled to vote on that resolution at a meeting of shareholders or members is as valid as if it had been passed at a meeting of the shareholders or members.
103.1(2)Subject to the letters patent and supplementary letters patent, a resolution in writing dealing with all matters required by this Act to be dealt with at a meeting of shareholders or members, or counterparts of such a resolution, signed by all the shareholders or members entitled to vote at that meeting, satisfies all the requirements of this Act relating to meetings of shareholders or members duly called, constituted and held.
103.1(3)Every resolution or counterpart referred to in subsection (1) or (2) shall be kept with the minutes of the meetings of shareholders or members.
1997, c.61, s.6
Meetings of shareholders or members by communication facilities
103.2A shareholder or member or any other person entitled to attend a meeting of shareholders or members may participate in the meeting by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other if
(a) the by-laws so provide, or
(b) subject to the by-laws, all the shareholders or members entitled to vote at the meeting consent,
and a person participating in a meeting by those means shall be deemed for the purposes of this Act to be present at the meeting.
1997, c.61, s.6
BOOKS OF THE COMPANY
Books and shareholders list
104The company shall cause books to be kept by the secretary, or by some other officer or agent specially charged with that duty, wherein shall be kept recorded
(a) a copy of the letters patent incorporating the company, and any supplementary letters patent, and of all by-laws of the company;
(b) the names alphabetically arranged of all persons who are or have been shareholders;
(c) the address and calling of every such person while a shareholder, as far as can be ascertained;
(d) the number of shares of stock held by each shareholder;
(e) the amounts paid in and remaining unpaid respectively on the stock of each shareholder;
(f) all transfers of stocks, with the date and other particulars of the transfer, and the date of the entry thereof;
(g) the names, addresses and callings of all persons who are or have been directors of the company, with the several dates at which each became or ceased to be a director;
(h) minutes of all meetings of shareholders, directors and executive committee.
R.S., c.33, s.103
Transfer register
105(1)A book called the register of transfers shall be provided, and in the book shall be entered the particulars of every transfer of shares in the capital of the company.
105(2)One or more branch registers of transfers may be kept at places appointed by the directors.
105(3)Every transfer made at a branch registry shall be forthwith reported to the head office of the company.
R.S., c.33, s.104
Inspection of books
106(1)Such books, with the exception of the minute books of the directors and executive committee, shall, during reasonable business hours of every day except Sundays and holidays, be kept open at the head office of the company or at such place as may be authorized under subsection (2) or (3) of this section, for the inspection of shareholders and creditors of the company and their personal representatives, and of any judgment creditor of a shareholder.
106(2)The Lieutenant-Governor in Council upon cause being shown to him may by order designate some other office of the company in the Province as the place where its books may be kept for the purposes of subsection (1).
106(3)Where an agent with an established place of business in the Province is appointed by the company for the purpose of recording the transfer of its shares, the book, in which are recorded the particulars mentioned in paragraphs 104(b), (c), (d), (e) and (f), may be kept at the agent’s place of business in the Province where the register of transfers is kept.
106(4)Every such shareholder, creditor or personal representative or judgment creditor may make extracts therefrom.
R.S., c.33, s.105; 1953, c.25, s.6
INSPECTION
Liability for failure to maintain books
107The directors of every company that neglects to keep such book or books as aforesaid, and any director or officer who refuses to permit any person entitled thereto to inspect the books, or make extracts therefrom, shall forfeit and pay to the party aggrieved the sum of fifty dollars, and in case the amount is not paid within ten days after judgment is recovered therefor, the court in which the judgment is recovered, or a judge thereof, may make an order for the imprisonment of the offender for any period not exceeding three months, unless the amount with costs is sooner paid, and such offender may be imprisoned accordingly, and does not have privilege of bail.
R.S., c.33, s.106
Action for failure to maintain books
108Any director, officer, or servant of the company, who knowingly makes, or assists to make, any untrue entry in any such book, or refuses or neglects to make any proper entry therein, shall besides any criminal liability that he may thereby incur, be liable in damages for any loss or injury that any person interested may have sustained thereby.
R.S., c.33, s.107
Investigation by court order
109(1)Upon the application of shareholders representing not less than one-fourth in value of the issued capital stock of the company a judge may, if he deems it necessary, appoint a competent inspector to investigate the affairs and management of the company, who shall report to the judge the result of the investigation.
109(2)The application shall be supported by such evidence as the judge may require for the purpose of showing that the applicants have good reason for requiring an investigation to be made, and that they are not actuated by malicious motives in instituting the investigation.
109(3)The judge may make necessary rules as to the investigation and prescribe the manner in which, and the extent to which, the investigation shall be conducted, or may, if he deems it necessary, examine the officers or directors of the company under oath as to matters that come in question.
109(4)The expense of the investigation shall, in the discretion of the judge, be defrayed by the company, or by the applicants, or partly by the company and partly by the applicants as the judge may order, who may, if he thinks fit, require the applicants to give security to cover the probable cost of the investigation, and upon the investigation and report the judge may make an order for the winding-up of the company or such other order as he deems proper.
R.S., c.33, s.108
Investigation by shareholders
110(1)The company may by resolution passed at an annual meeting, or at a general meeting called for the purpose, appoint an inspector to examine into the affairs of the company, and may in the resolution direct the manner and extent of the investigation and the matter to be investigated.
110(2)The inspector so appointed has the same powers as an inspector appointed by a judge, and shall make his report in the manner and to the persons that the company by the resolution directs.
R.S., c.33, s.109
Application of Act respecting books
111The provisions of sections 104 to 110 inclusive are applicable to every company heretofore incorporated by letters patent or under any special or general Act, or that may hereafter be incorporated under this Act.
R.S., c.33, s.110; 1981, c.12, s.11
Duty to produce books and documents
112(1)It is the duty of all officers and servants of the company to produce for the examination of any inspector appointed by a judge, or by the company, all books and documents in their custody or power relating to the affairs of the company.
112(2)Any such inspector may examine upon oath the officers and agents of the company in relation to its business.
R.S., c.33, s.111
PROCEDURE
Service of process
113(1)Any summons, notice, order, other process or document required to be served upon the company may be served by leaving it at the head office of the company with any adult person in the employ of the company, or by serving it on the president, secretary or other officer of the company.
113(2)If the company has no known office and no known president, secretary or other officer, the court may order such publication as it deems requisite to be made in the premises; and such publication shall be deemed to be due service upon the company.
R.S., c.33, s.112
Authentication of documents
114Any summons, notice, order or proceeding that requires authentication by the company may be signed by any director, manager or other authorized officer of the company, and need not be under the seal of the company.
R.S., c.33, s.113
Service of notice on shareholders
115Notices to be served by the company upon the shareholders, other than those required in section 103, may be served either personally or by sending them through the post, in registered letters, addressed to the shareholders at their respective places of abode or, when a place of abode is unknown, to the address as shown on the books of the company.
R.S., c.33, s.114
Service of notice on shareholders – post
116A notice or other document served by post, by the company on a shareholder, shall be deemed to be served at the time when the letter containing it would be delivered in the ordinary course of post.
R.S., c.33, s.115
Actions between company and shareholders
117Any description of action may be prosecuted and maintained between the company and a shareholder thereof.
R.S., c.33, s.116
Form of corporate name in legal proceedings
118In an action or other legal proceeding, it is not requisite to set forth the mode of incorporation of the company, otherwise than by mention of it under its corporate name as incorporated by virtue of letters patent, or of letters patent and supplementary letters patent, as the case may be, under this Act.
R.S., c.33, s.117
Share ownership disputes
119Where the interest in any shares of the capital stock of the company is transmitted by the death of a shareholder, or otherwise, or where the ownership of any shares or the legal right of possession of the same changes by any lawful means other than by transfer according to the provisions of this Act, and the directors of the company entertain reasonable doubts as to the legality of a claim to such shares, the company may make and file in the Court a declaration and petition in writing, addressed to a Judge, setting forth the facts and the number of shares previously belonging to the person in whose name the shares stand in the books of the company, and praying for an order or judgment adjudicating and awarding the shares to the person or persons legally entitled to the same.
R.S., c.33, s.118
Notice to person claiming shares
120Notice of the intention to present such petition shall be given to the person claiming the shares, or to the attorney of that person duly authorized for the purpose, who shall, upon the filing of the petition, establish his right to the shares referred to in the petition; and the time to plead and all other proceedings in such a case are the same as those observed in analogous cases before such Court.
R.S., c.33, s.119
Costs and expenses
121The costs and expenses incurred by the company in procuring the order or judgment shall be paid to the company by the person or persons to whom the shares are declared lawfully to belong, and the shares shall not be transferred in the books of the company until the costs and expenses are paid, but this provision in no way prejudices the right of the person adjudged to be the lawful owner of the shares to recourse, according to the practice of the court, for such costs and expenses against any person contesting his right to the shares.
R.S., c.33, s.120
Share transfer pursuant to court order
122(1)The company shall be guided by the order of the Judge establishing the right to such shares.
122(2)The order or judgment has the effect of a release from every other claim to the said shares, or arising in respect thereof, and shall fully indemnify and save harmless the company from any such claim.
R.S., c.33, s.121
STATEMENTS AND RETURNS
Financial statements to shareholders
123The directors of every company shall lay before its shareholders annually at or before the general meeting of the company for the election of directors, a full statement of the affairs and financial position of the company.
R.S., c.33, s.122
Content of financial statements
124(1)The statement referred to in section 123 shall include
(a) a profit and loss account made up to a date not more than four months before the date of the meeting at which it is laid;
(b) a balance sheet signed by two directors or by the auditors showing the assets and liabilities of the company as at the date to which the profit and loss account is made up;
(c) a statement of surplus showing separate accounts for capital surplus and earned surplus, which statement may be incorporated with (a) or (b);
(d) the report of the auditors, if any.
124(2)The provisions of this section do not apply to an incorporated fishing, sporting or literary club or association or any company incorporated without capital stock under the provisions of section 18.
R.S., c.33, s.123
Delivery of financial statements
125(1)The directors of every company shall, upon the request of any shareholder, cause to be delivered to him a copy of the statement referred to in sections 123 and 124.
125(2)The request referred to in subsection (1) may be made before, at or after the meeting; and if made within fourteen days before the meeting, the directors shall cause the copy to be delivered not later than four days following the receipt of the request.
R.S., c.33, s.124
Statement to Director
126(1)Before the last day of the month following the anniversary month, without notice or demand, every company incorporated under the laws of New Brunswick except those subject to the Loan and Trust Companies Act, the Business Corporations Act, the Cooperatives Act or the Credit Unions Act shall deliver to the Director a statement, signed by a director or an officer of the company, in the form prescribed by regulation.
126(1.1)For the purposes of this section, “anniversary month” means the month of each year that is the same as the month in which the company was incorporated under the laws of New Brunswick.
126(2)Repealed: 2008, c.11, s.8
126(2.1)Repealed: 1983, c.19, s.7
126(3)The Director may in his discretion and for good cause enlarge the time for making and delivering any such statement.
126(4)The Lieutenant-Governor in Council may make regulations
(a) establishing, altering and regulating the tariff of fees to be paid under this section;
(a.1) waiving, in whole or in part, any obligation to file a statement under this section subject to such terms and conditions as the Lieutenant-Governor in Council considers appropriate;
(b) prescribing forms and all other matters required to carry out the objects of this section.
126(5)Such fees may vary in amount, having regard to the nature of the company, amount of capital stock, the amount of capital invested or used in conducting the company’s business in the Province and otherwise as may be deemed expedient.
126(6)Upon the receipt of the statement and the fees payable thereon the Director may issue a certificate of the making of such statement under his hand, which shall be received as prima facie evidence of the statements contained in such certificate in all courts.
R.S., c.33, s.125; 1954, c.28, s.8; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.12; 1983, c.19, s.7; 1986, c.23, s.1; 1987, c.L-11.2, s.280; 1989, c.9, s.2; 1992, c.C-32.2, s.309; 1996, c.62, s.3; 2002, c.15, s.23; 2002, c.29, s.3; 2008, c.11, s.8; 2017, c.55, s.5; 2019, c.24, s.184; 2023, c.2, s.168
Offence and penalty
126.1(1)A person who knowingly makes or assists in making a report, return, notice, statement or other document required by this Act or the regulations to be sent to the Director that
(a) contains an untrue statement of a material fact, or
(b) omits to state a material fact required therein or necessary to make a statement contained therein not misleading in light of the circumstances in which it was made,
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
126.1(1.1)If the person who commits an offence under subsection (1) is a company, then, whether or not the company has been prosecuted or convicted, any director or officer of the company who knowingly authorizes, permits or acquiesces in the commission of that offence, commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
126.1(2)No person commits an offence under subsection (1) or subsection (1.1) if the untrue statement or omission was unknown to him and in exercise of reasonable diligence could not have been known to him.
1981, c.12, s.13; 2002, c.15, s.24; 2002, c.29, s.3
Repealed
127Repealed: 1981, c.12, s.14
1954, c.28, s.9; 1981, c.12, s.14
Proof of statements in company books
128All books required by this Act to be kept by the company are in any action, suit or proceedings against the company or against any shareholder prima facie evidence of all facts purporting to be thereby stated.
R.S., c.33, s.126
Service by registered mail
129Evidence that a letter properly addressed and registered, containing any notice or other document permitted by this Act to be served by post, was properly addressed and registered and was put into the post office, and of the time when it was so put in, and of the time requisite for its delivery in the ordinary course of post is prima facie proof of the fact and time of service.
R.S., c.33, s.127
Proof of by-law
130A copy of a by-law of the company under the seal of the company and purporting to be signed by an officer of the company shall be received as against any shareholder of the company as prima facie evidence of the by-law.
R.S., c.33, s.128
Proof of incorporation
131In any action or other legal proceeding the notice in The Royal Gazette of the issue of letters patent or supplementary letters patent under this Act is prima facie proof of all things therein contained, and on production of the letters patent or supplementary letters patent, or of any exemplification or copy thereof, the fact of such notice and publication shall be presumed.
R.S., c.33, s.129
Proof of letters patent
132Except in a proceeding by scire facias or otherwise for the purpose of rescinding or annulling letters patent or supplementary letters patent issued under this Act, the letters patent or supplementary letters patent, or any exemplification or copy thereof, are conclusive proof of every matter and thing therein set forth.
R.S., c.33, s.130
Proof by affidavit
133Proof of any matter that is necessary to be made under this Act may be made by oath or affirmation or by solemn declaration before any commissioner for taking affidavits to be used in the Court or any notary public.
R.S., c.33, s.131; 1979, c.41, s.20; 1984, c.27, s.4
Winding-up of companies
134Every company is subject to the provisions of any Act of the Legislature for the winding-up of companies.
R.S., c.33, s.132
FEES
Regulations
135(1)The Lieutenant-Governor in Council may make regulations
(a) prescribing the tariff of fees to be paid on applications for letters patent and supplementary letters patent under this Act;
(a.1) waiving, in whole or in part, any fee required to be paid under this Act or the regulations subject to such terms and conditions as the Lieutenant-Governor in Council considers appropriate;
(b) prescribing the forms of proceedings and records in respect of applications for letters patent and supplementary letters patent under this Act;
(c) providing for any other matter necessary for the carrying out of the objects of this Act.
135(2)Such fees may vary in amount under any rule as to the nature of the company, amount of capital and otherwise, that may be deemed expedient.
135(3)No step shall be taken in any department towards the issue of any letters patent or supplementary letters patent until all fees therefor have been duly paid.
R.S., c.33, s.133; 1983, c.19, s.8; 2002, c.15, s.25; 2002, c.29, s.3
Application of Act to company incorporated under special Act
136The provisions of this Act apply, subject to section 136.1, to all companies incorporated by any special Act of the Legislature so far as they are not inconsistent with the provisions of the special Act, and all extensions of powers and increases or reductions of capital or consolidation, sub-division or conversion of shares of companies incorporated by special Act heretofore granted or authorized by letters patent or supplementary letters patent are hereby ratified and confirmed.
R.S., c.33, s.134; 2002, c.15, s.26
Application of Act to company incorporated under public Act
136.1The provisions of this Act do not apply to a company incorporated under a public Act of the Legislature, and any reference in any other provision of this Act to a company incorporated under a special Act, or to a special Act, shall be read, unless the context otherwise requires, as a reference to a company incorporated under a private Act, or a private Act, as the case may be.
2002, c.15, s.27
Deposit of sums due to shareholders
137(1)Where money is payable by a company to one of its shareholders as dividend, or by way of distribution of assets, and
(a) the address of the shareholder is unknown to the company,
(b) the shareholder refuses to accept the money, or
(c) for other reasons the company is unable to pay,
the company may deposit the money to the credit of the shareholder with the Minister of Finance and Treasury Board, accompanied by a written statement showing how the money became payable and thereupon the company is released from liability for the money to the shareholder.
137(2)The Minister of Finance and Treasury Board shall keep a separate account of the money deposited under the provisions of this section and shall allow interest at the rate of three per cent per annum on such money remaining on deposit with him for more than six months.
137(3)Such money with any accrued interest shall be paid to the shareholder or his legal representatives upon order of a Judge to be made on proof of the claimant’s right to such money.
R.S., c.33, s.135; O.C. 64-312; 1978, c.D-11.2, s.7; 1986, c.23, s.2; 2002, c.29, s.3; 2019, c.29, s.32
II
PROVINCIAL MUTUAL
INSURANCE COMPANIES
Company defined
138In this Part, unless the context otherwise requires, the words and expressions defined in section 1 of the Insurance Act, as used herein have the same meaning as in that Act and the word “company” as used in this Part means a “Provincial mutual company” as defined in said section 1.
R.S., c.33, s.136
Incorporation
139A company may be incorporated under this Part for the purpose of insuring or re-insuring under the provisions of Part XII of the Insurance Act.
R.S., c.33, s.137; 2002, c.15, s.28
Name
140(1)The name of a company incorporated under this Part shall contain the words “Mutual Insurance Company” or “Compagnie mutuelle d’assurance”, with such other words preceding or following as may be approved by the Director.
140(2)Upon the request of the company and with the approval of the Director its name may be changed.
R.S., c.33, s.138; O.C. 64-312; 1978, c.D-11.2, s.7; 1986, c.23, s.3; 2002, c.29, s.3
Share capital
141(1)A company incorporated under this Part has no shares; but each person insured under a policy issued by the company is a member thereof.
141(2)A company shall have not less than fifty members insured under policies issued by it for sums amounting in the aggregate to not less than one hundred thousand dollars.
R.S., c.33, s.139
Subscribers and subscription book
142(1)Any five or more persons, of the age of nineteen years or over, being residents of any county in the Province and owning real estate in that county, may apply to the Superintendent for his approval to promote the organization of a company under this Part.
142(2)An application under subsection (1) shall be in writing and shall be signed by each of the applicants, with his post office address, and each signature shall be witnessed, and the applicants shall be known as the promoters of the proposed company, and one of them shall be named in the application as chairman.
142(3)If the Superintendent approves of the application, he shall forward to the promoters through their chairman one or more books, known as subscription books, for the purpose of obtaining subscribers to the organization of the proposed company.
142(4)Each subscription book shall contain
(a) a certificate of the Superintendent that he has approved of the application of the promoters, and
(b) a statement to be signed by each subscriber binding him, in the event of the organization of the company, to take out insurance therein to the amount subscribed.
142(5)Each subscriber shall be of the age of nineteen years or over, and be the owner of, or have an insurable interest in insurable property within New Brunswick, and each subscriber shall, in addition to his name, set forth in the subscription book his address, the parish or town in which the property to be insured is situate and the amount of insurance for which he subscribes.
142(6)The signature of each subscriber shall be witnessed and proved by affidavit.
R.S., c.33, s.140; 1972, c.5, s.2
Application for incorporation
143(1)After insurance has been subscribed by fifty or more subscribers to an amount not less than one hundred thousand dollars, the promoters through their chairman may call an organization meeting of the subscribers to consider the advisability of applying for the incorporation of a mutual fire insurance company under this Part, and to do such other business as may be necessary.
143(2)Notice stating the object and the time and place of such meeting shall be mailed to each subscriber and to the Superintendent at least ten days before the date of meeting.
143(3)The Superintendent may call such organization meeting if the promoters fail to do so within a time considered reasonable by the Superintendent.
143(4)The presence of not less than twenty subscribers is necessary to constitute a valid meeting.
R.S., c.33, s.141; 1986, c.23, s.4
Organizational meeting
144Where an organization meeting decides to apply for incorporation, the meeting shall decide upon a name to be proposed as the name of the company, and the place of its head office, and shall elect by ballot from among the subscribers a provisional Board of Directors consisting of six directors or such larger number, being a multiple of three, as the meeting by resolution determines.
R.S., c.33, s.142
Provisional directors
145Within one week after their election, the provisional Board of Directors shall meet and elect or appoint a president and vice-president from their own number and a secretary and treasurer, who may or may not be directors, to be president, vice-president, secretary and treasurer of the company; and the secretary and treasurer may be the same person.
R.S., c.33, s.143
Petition for incorporation
146(1)Within ten days after the meeting of the provisional Board of Directors, the secretary of the proposed company shall forward to the Director a petition for incorporation setting forth:
(a) the number of subscribers to the subscription books and the aggregate amount of insurance subscribed for;
(b) the date and place of the organization meeting;
(c) the number of subscribers present at the organization meeting and the aggregate amount of insurance subscribed for by them;
(d) the names of the chairman and the secretary of the organization meeting;
(e) a copy of the resolution to apply for the incorporation of a Provincial Mutual Fire Insurance Company and the number voting respectively for and against the resolution;
(f) the proposed name of the company and that it is not the name of any other known company, incorporated or unincorporated, or any name liable to be confounded therewith, or otherwise on public grounds objectionable;
(g) the proposed place of business to be the head office of the company;
(h) the names and addresses of the provisional directors;
(i) the date of the meeting of the provisional Board of Directors;
(j) the names and addresses of the officers of the proposed company.
146(2)The petition shall be signed by the president and secretary appointed at the meeting of the provisional Board of Directors and the facts therein shall be verified by affidavit.
146(3)Accompanying the petition shall be a copy of the minutes of the organization meeting and of the meeting of the provisional Board of Directors, together with a copy of all subscription books, proved by affidavit to be a true copy.
146(4)The secretary shall forward to the Director the fees payable on the incorporation of a company under this Part.
146(5)Upon the request of the Director, the original minutes of such meetings and the original subscription books shall be produced before him for examination.
R.S., c.33, s.144; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Letters patent
147(1)Upon receipt by the Director of the petition and documents, and a sum sufficient for the payment of all fees, and upon the certificate of the Superintendent that the proceedings for the incorporation of the company have been in compliance with sections 142 and 143 and the Insurance Act, and that the subscriptions are made in good faith and by persons possessing property to insure, the Director may issue letters patent incorporating the applicants and others who thereafter become members in the company thereby created a company for the objects and purposes set forth in this Part and the Insurance Act.
147(2)The letters patent shall limit the powers of the company thereby created to undertaking contracts of insurance against loss by fire, lightning or explosion upon farm and other non-hazardous property upon the premium note plan or under the Mutual Insurance Guarantee Fund established under the Insurance Act subject to the provisions of and the regulations under this Part and the Insurance Act.
147(3)Notwithstanding subsection (2), a company incorporated under this Part shall have and shall be deemed to have had since the time of the issue of its letters patent, in addition to the power to undertake contracts of insurance against loss by fire, lightning and explosion on farm and other non-hazardous property, the power to undertake contracts of
(a) insurance against loss or damage by perils referred to in subsection 24(6) of the Insurance Act or prescribed by regulation under that Act,
(b) theft and livestock insurance, and
(c) other classes of insurance that have been approved by the Superintendent,
in respect of farm and other non-hazardous property.
R.S., c.33, s.145; O.C. 64-312; 1978, c.D-11.2, s.7; 1982, c.32, s.4; 1985, c.40, s.1; 1986, c.23, s.5; 2002, c.29, s.3
Provisional officers and directors
148The directors and officers elected and appointed under sections 144 and 145 shall be the directors and officers of the company until its first annual meeting.
R.S., c.33, s.146
Incorporation expenses
149All disbursements made and expenses and debts incurred in the organization and incorporation of a company under this Part up to and including the publication of notice of incorporation in The Royal Gazette, as taxed by the Superintendent, shall be paid by the company and are a first charge upon its assets.
R.S., c.33, s.147
Applications for insurance
150(1)Each subscriber to the subscription books for the organization of the company shall within three weeks from the date of the incorporation of the company, or within such further period as may be allowed by the Superintendent, apply to the company in accordance with its by-laws, for a contract of insurance in an amount not less than the amount subscribed for by him.
150(1.1)Repealed: 2008, c.11, s.8
150(2)Repealed: 2008, c.11, s.8
150(3)During such period no act of the company shall be rendered void or inoperative nor shall its incorporation be prejudiced or affected, by reason of the company not having obtained the minimum membership nor made contracts of insurance to the minimum aggregate amount required by this Part.
150(4)No subscriber shall be deemed to have a contract of insurance with the company until an application for a contract has been made by him to the company and a policy of insurance issued by the company to him.
150(5)Notwithstanding anything in this section, until the minimum membership and minimum aggregate amount of insurance required by this Part has been obtained, each subscriber to the subscription books who has not taken out insurance in the company shall be deemed a provisional member of the company.
R.S., c.33, s.148; 1990, c.22, s.7; 2008, c.11, s.8
Withdrawal of member
151Any member may with the consent of the directors withdraw from the company upon such terms as the directors lawfully prescribe, and upon withdrawal his policy shall be cancelled; but he is nevertheless liable to be assessed for and to pay his proportion of losses, expenses and reserve to the time of cancelling the policy, and on such payments being made, he is entitled to a return of his premium note.
R.S., c.33, s.149
Power to hold realty
152(1)A company may, for its purposes, hold, purchase, take or lease real estate and sell, exchange, mortgage or lease the same.
152(2)A company may hold and deal with real estate acquired by foreclosure or in satisfaction of a debt, but it shall sell and dispose of any such real estate within seven years from the date of its acquisition.
R.S., c.33, s.150; 2002, c.15, s.29
Head office
153The head office of a company may with the consent of the Director be changed upon the request of the company or four-fifths of the directors, and notice of the change shall be published in The Royal Gazette, the cost of which notice shall be paid by the company.
R.S., c.33, s.151; O.C. 64-312; 1978, c.D-11.2,s.7; 2002, c.29, s.3
Voting and procedure at meetings
154(1)At all meetings of a company, each member present and not in arrears to the company for any dues, fees or assessments has one vote.
154(2)No member may vote by proxy but a corporation or partnership may vote by an officer or member thereof authorized in writing to represent it.
154(3)Where a company has not more than one hundred and twenty-five members, fourteen members or accredited representatives of corporations or partnerships being members, or one-fifth of the whole membership, whichever is the larger, constitutes a quorum for a meeting of the company; and when the membership exceeds one hundred and twenty-five, then twenty-five members or accredited representatives constitutes a quorum.
154(4)At any meeting of a company at which a quorum is not present, the meeting may be constituted for the purpose of adjournment if one-half of the number necessary to constitute a quorum is present; and notice of such adjourned meeting shall be given to all members in like manner as notice of the original meeting.
R.S., c.33, s.152; 1987, c.6, s.10
Election of directors
155(1)At the first annual meeting of the company, there shall be elected by ballot a Board of six directors or such larger number, being a multiple of three, as may be decided by by-law or resolution, one-third of the number to be elected for one year, one-third for two years, and the remaining one-third for three years.
155(2)At every annual meeting thereafter, one-third of the total number of directors shall be elected for a period of three years to fill the places of the retiring directors, who are eligible for re-election.
155(3)The number of directors may be increased or decreased by by-law or resolution if their number is not less than six and a multiple of three, and the plan of rotation whereby one-third of the Board of Directors retires each year is maintained.
155(4)Every director shall be of the age of nineteen years or over and a member of the company in good standing and insured therein for at least one thousand dollars, or an accredited representative of a partnership or corporation being a member of the company in good standing and insured for at least one thousand dollars.
R.S., c.33, s.153; 1983, c.19, s.9
Joint policy holders
156If a policy of insurance has been issued to two or more persons, such persons for the purpose of sections 154 and 155 shall be deemed a partnership.
R.S., c.33, s.154
Election of officers
157(1)Each year at their first meeting after election, the directors shall elect from their own number a president and a vice-president of the company who shall act until the first meeting of the company.
157(2)Not later than one week from the date of such meeting, the directors shall forward or cause to be forwarded to the Superintendent a list of the names and addresses of the directors and officers of the company.
R.S., c.33, s.155
Management of company
158(1)Subject to the by-laws and resolutions of the company and the provisions of this Part and the Insurance Act, and the regulations, the directors have the general management and control of the business and affairs of the company and its funds and property and in connection therewith may appoint a manager, a secretary, a treasurer and such other officers, agents or assistants as to them may seem necessary, prescribe their duties, fix their compensation or allowances, take security for the faithful performance of their respective duties and remove them and appoint others in their stead.
158(2)The directors may appoint the same person to more than one office or employment.
158(3)The security given by the treasurer or other officer or officers having charge of the money, funds, investments or securities of the company shall be in the amount that the Superintendent directs, but in any event not less than two thousand dollars, and shall consist of the bond of a guarantee company licensed to do business in the Province.
R.S., c.33, s.156
Meetings of directors
159(1)Unless otherwise directed by by-law, the directors shall meet at least once in every three months for the transaction of business.
159(2)At all meetings of the Board of Directors the chairman on each question has a vote and one only, and in case of an equality of votes the motion shall be declared lost.
159(3)In the event of a vacancy occurring in the Board of Directors, the remaining directors shall forthwith, in the case of a Board limited to six directors, and may, in the case of a larger Board, appoint a qualified person to fill the vacancy until the next annual meeting of the company, and at such annual meeting, the vacancy shall be filled for the portion of the term, if any, still unexpired.
159(4)Four directors or one-third of the whole number, whichever is the larger, constitutes a quorum for a meeting of the Board.
159(5)The Board shall keep a record of its proceedings in a book to be known as the minute book of the company in which also shall be entered the proceedings of all meetings of the company.
159(6)A director disagreeing with the majority at a meeting may have his dissent recorded with his reasons therefor.
159(7)Subject to the provisions of section 161, the Board of Directors shall fix the time and place of the annual meeting of the company and shall give notice thereof to each member.
159(8)The Board of Directors may call special meetings of the company, giving notice thereof to the members.
R.S., c.33, s.157
Borrowing powers
160(1)Subject to the by-laws and resolutions of the company, the directors may borrow on the credit of the company and issue debentures, promissory notes or other instruments for the repayment thereof, and may hypothecate, mortgage or pledge the real or personal property of the company or both, including premium notes and book debts, to secure loans to the company.
160(2)The amount of such loans at any time outstanding shall not exceed one-half of the aggregate amount remaining unpaid upon the premium notes held by the company or such larger amount as may be allowed by the Superintendent.
R.S., c.33, s.158
Fiscal year
161The fiscal year of a company ends with the thirty-first day of December and its annual meeting shall be held within two months thereafter or at such other time as may be approved by the Superintendent.
R.S., c.33, s.159
By-laws
162(1)A company may make by-laws, not inconsistent with this Part or the Insurance Act, or the regulations, for the management of its business, the regulation of the tariff of fees, the levying of assessments, and the forms, terms and conditions of its insurance policies and generally for all matters incident to its incorporation, or necessary for carrying out the purposes thereof; but no such by-law has any force or effect until it is approved by the Superintendent.
162(2)The Board of Directors may in like manner and with like powers, make by-laws for such purposes, and may add to, alter, annul and re-enact any by-law whether made by the Board of Directors or at a meeting of the company and any such by-law or any such addition thereto or any alteration, annulment or re-enactment thereof made by the Board of Directors has upon approval of the Superintendent the same force and effect as if made at a meeting of the company but only until the next annual meeting of the company and if not confirmed thereat ceases, but from that time only, and is of no effect.
R.S., c.33, s.160
INCORPORATION OF MUTUAL BENEFIT
SOCIETIES
Society defined
163The word “society” as used in the remaining sections of this Part means a “mutual benefit society” as defined in section 1 of the Insurance Act.
R.S., c.33, s.161
Purpose of incorporation
164Five or more persons of the age of nineteen years or more, being residents of the Province, may apply for incorporation under this Part for the purpose of undertaking any class of insurance for which a mutual benefit society may be licensed under the provisions of the Insurance Act.
R.S., c.33, s.162; 1972, c.5, s.2
Application for incorporation
165(1)The applicants for the incorporation of a mutual benefit society shall submit to the Superintendent the proposed constitution and by-laws of the society, which constitution and by-laws must be approved by the Superintendent, and when approved by him shall be incorporated in a membership book; the membership book shall also contain a memorandum of agreement whereby all subscribers thereto agree to become members of the society when incorporated and to abide by the constitution and by-laws of the society and all amendments, additions and alterations made thereto under the authority of this Part.
165(2)Two copies of the membership book shall be forwarded to the applicants by the Superintendent.
R.S., c.33, s.163
Content of petition
166(1)The applicants may thereafter file with the Director a petition for the grant of a charter.
166(2)The petition shall show
(a) the proposed name of the society, which name shall include the words “Mutual Benefit Society” or the words “société mutuelle”;
(b) the place within the Province where the head office of the society is to be situated;
(c) the name in full, the place of residence and the calling of each of the applicants who are to be the provisional trustees or managing officers of the society until the organization meeting.
166(3)The petition shall be accompanied by
(a) the original membership book containing the signatures, duly certified, of at least fifty persons who thereby agree to become members of the society when incorporated;
(b) a copy of the original membership book proved by affidavit to be a true copy;
(c) a certificate of the Superintendent approving the application and proposed constitution and by-laws;
(d) such other evidence, documents or information as the Director or the Superintendent may require; and
(e) a sum sufficient to pay the prescribed fees.
R.S., c.33, s.164; O.C. 64-312; 1978, c.D-11.2, s.7; 1981, c.12, s.15; 2002, c.29, s.3
Issue of letters patent
167The Director may thereupon, by letters patent, grant a charter constituting the applicants, and others who may thereafter become members of the society, a body corporate for the objects and purposes set forth in this Part, and Part XI of the Insurance Act.
R.S., c.33, s.165; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Organizational meeting
168(1)Within thirty days after the issue of the letters patent, and upon due notice to all members of the society, in manner and form prescribed by the Superintendent, an organization meeting may be held at the time and place stated in the notice.
168(2)The presence of at least twenty members is necessary to constitute a valid meeting.
168(3)At the organization meeting the officers and directors shall be elected and the constitution and by-laws of the society adopted, but no by-law of this or any other subsequent meeting has any effect until approved by the Superintendent.
R.S., c.33, s.166
Membership book
169No person becomes a member of a society incorporated under this Part, or is entitled to any benefits therefrom, until he has signed the membership book of the society.
R.S., c.33, s.167
Membership qualifications
170Persons under the age of nineteen years and over the age of fourteen years may become members of a society incorporated under this Part and are thereupon subject to all obligations and entitled to all rights and privileges in respect of that society as if over the age of nineteen years, but no person under the age of nineteen years has a vote at any meeting of, nor shall hold any office in, any such society.
R.S., c.33, s.168; 1972, c.5, s.2
Application of Act
171(1)Sections 152 and 160 do not apply to societies incorporated under this Part unless the Lieutenant-Governor in Council otherwise orders.
171(2)Sections 149, 153, 156, 157, 158, 159 and 161 apply to societies incorporated under this Part, mutatis mutandis, unless the Lieutenant-Governor in Council otherwise orders.
171(3)The remaining sections of this Part, in so far as applicable, apply to societies incorporated under this Part, mutatis mutandis, unless the Lieutenant-Governor in Council otherwise orders.
R.S., c.33, s.169
GENERAL
Application of Act
172(1)Sections 14, 42 and 81 of this Act do not apply to companies or societies incorporated under this Part unless the Lieutenant-Governor in Council otherwise orders.
172(2)Except where inconsistent with the provisions of this Part or of the Insurance Act, the remaining provisions of this Act applicable to companies without capital stock apply to companies and societies incorporated under this Part unless the Lieutenant-Governor in Council otherwise orders.
R.S., c.33, s.170
Regulations
173The Lieutenant-Governor in Council may make regulations
(a) for the fees to be paid on incorporation under this Part;
(a.1) respecting the format and contents of statements, notices and other documents required to be sent to the Director;
(a.2) requiring the payment of a fee in respect of the filing, examination or copying of any document kept on record by the Director; and
(b) for the better administration of and carrying out of this Part.
R.S., c.33, s.171; 1981, c.12, s.16; 2002, c.29, s.3
III
MINING COMPANIES
Issue of shares at discount
174A mining company hereafter incorporated under this Part, and made by the letters patent subject to the provisions of this Part, may issue its shares at a discount or at any other rate in the manner hereinafter prescribed.
R.S., c.33, s.172
Par value shares
175The shares of a company shall be with par value.
1954, c.28, s.10
Preference shares
176Notwithstanding section 174, preference shares shall not be issued at a discount.
1954, c.28, s.10
Liability of shareholder
177No shareholder of such a company holding shares, issued as herein provided, is personally liable for non-payment of any calls made upon his shares beyond the amount agreed to be paid therefor.
R.S., c.33, s.173
By-law to issue shares at discount
178No shares shall be issued at a discount unless authorized by a by-law of the company fixing and declaring the rate and any other terms and conditions of the issue, confirmed at a special general meeting of the shareholders duly called for considering the same.
R.S., c.33, s.174
Filing of by-law
179A copy of such by-law shall, within twenty-four hours after it has been confirmed, be transmitted by registered post to the Director or be filed in his office within five days, and such copy shall be verified as a true copy by the joint affidavit of the president and secretary, and if there are no such officers, or they, or either of them, are, or is, at the proper time unable to make the same, by the affidavit of the president or secretary and one of the directors, or of two of the directors, as the case may require; and if the president or secretary does not make or join in the affidavit the reason therefor shall be stated in the substituted affidavit.
R.S., c.33, s.175; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3
Share certificate
180Every such company shall have written or printed immediately after or under its name, wherever such name is used by the company or by any director, officer, servant or employee thereof, and shall have engraved upon its seal the words “NO PERSONAL LIABILITY”; and upon every share certificate issued by the company, distinctly written or printed in red ink, where such share certificates are issued in respect of shares subject to call, the words “SUBJECT TO CALL” or, if in respect to shares not subject to call, the words, “NOT SUBJECT TO CALL,” according to the fact.
R.S., c.33, s.176
Forfeiture of shares
181(1)In the event of any call on shares of such company remaining unpaid by the holder thereof for a period of sixty days after notice and demand of payment, the shares may be declared to be in default and the secretary of the company may advertise those shares for sale at public auction to the highest bidder for cash by giving notice of the sale in a newspaper published in the county where the principal office of the company is situate, or if no newspaper is published there, then in a newspaper at the nearest place to such office, once a week for four successive weeks.
181(2)The notice shall contain the number of the share certificates in respect of the shares and the number of shares, the amount of the call or calls due and unpaid and the time and place of sale.
181(3)In addition to publishing the notice, it shall be personally served upon the shareholder or sent to him by registered post addressed to him at his place of abode or, when his place of abode is unknown, to his address as shown on the books of the company.
181(4)If the holder of the shares fails to pay the amount due thereon, with interest and the cost of advertising, before the time fixed for the sale, the secretary shall proceed to sell the same, or such portion thereof as suffices to pay the calls together with interest and the cost of advertising and of the sale.
181(5)If the price of the shares so sold exceeds the amount due with interest and costs, the excess shall be paid to the defaulting shareholder on demand.
181(6)In lieu of proceeding to sell under the preceding subsections, the company may maintain an action for the sale of the shares in the Court, and process in such action may be served upon a shareholder resident out of the jurisdiction in the same manner and subject to the same condition as process is permitted to be served out of the jurisdiction in cases provided for by the Rules of Court.
181(7)When there is any question raised as to the validity of a call or as to the right to sell, an action may be brought in the Court for the purpose of determining the validity of the call and the right to sell and process in the action may be served on a shareholder resident out of the jurisdiction as provided in subsection (6).
R.S., c.33, s.177; 1979, c.41, s.20; 1985, c.4, s.12
Meetings of directors
182(1)A director absent from and resident outside of Canada may, if authorized, and in such form as may be prescribed by the by-laws of the company, by instrument in writing, the execution of which is verified by the affidavit of a subscribing witness, appoint and authorize any shareholder holding the number of shares fixed as the qualification for a director to attend and vote, as fully and effectually as if such director were personally present, at any meeting of directors held within the Province and to accept notice of any such meeting.
182(2)All acts done under such authority are binding in all respects and to the same extent as if the director granting the authority had done the acts.
182(3)No authority is valid for a period exceeding one year, but the authority may be renewed by similar instrument in writing duly verified, if and as provided by the by-laws of the company.
182(4)Such authority and every renewal thereof so verified shall be filed forthwith with the secretary of the company, and a duplicate original so verified, or a notarial copy thereof, shall be filed forthwith in the office of the Director.
R.S., c.33, s.178; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.15, s.30; 2002, c.29, s.3
Repealed
183Repealed: 2008, c.11, s.8
R.S., c.33, s.179; O.C. 64-312; 1978, c.D-11.2, s.7; 2002, c.29, s.3; 2008, c.11, s.8
Fees
184The fees payable for incorporation under this Part shall be fixed by the Lieutenant-Governor in Council.
R.S., c.33, s.180
N.B. This Act is consolidated to June 16, 2023.