Acts and Regulations

B-9.1 - Business Corporations Act

Full text
Current to 1 January 2024
CHAPTER B-9.1
Business Corporations Act
2023, c.2, s.1
Assented to July 17, 1981
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
I
DEFINITIONS, INTERPRETATION, APPLICATION AND ADMINISTRATION
Definitions and interpretation
1(1)In this Act
“affairs” means the relationships among a corporation, its affiliates and the shareholders, directors and officers of such bodies corporate but does not include the business carried on by such bodies corporate;(affaires internes)
“affiliate” means an affiliated body corporate within the meaning of subsection (2);(affilié)
“anniversary month” means the month of each year that is the same as the month in which the corporation was incorporated or continued under this Act or became subject to this Act under paragraph 2(1)(b), unless the corporation was incorporated under any other Act of the Legislature and voluntarily continued under this Act or was deemed to have been continued under paragraph 2(1)(c), in which case it means the month of each year that is the same as the month in which the corporation was incorporated under such other Act of the Legislature;(mois anniversaire)
“articles” means the original or restated articles of incorporation and any articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution, articles of revival and articles of amendment, letters patent, supplementary letters patent and a special Act and any amendments thereto;(statuts)
“associate” when used to indicate a relationship with any person means(associé)
(a) a body corporate of which that person beneficially owns or controls, directly or indirectly, shares or securities currently convertible into shares carrying more than ten per cent of the voting rights under all circumstances or by reason of the occurrence of an event that has occurred and is continuing or a currently exercisable option or right to purchase such shares or such convertible securities,
(b) a partner of that person acting on behalf of the partnership of which they are partners,
(c) a trust or estate in which that person has a substantial beneficial interest or in respect of which he serves as a trustee or in a similar capacity,
(d) a spouse of that person or an individual who is cohabiting with that person in a conjugal relationship, having so cohabited for a period of at least one year,
(d.1) a child of that person or of the spouse or individual referred to in paragraph (d), and
(e) a relative of that person or of the spouse or individual referred to in paragraph (d), if that relative has the same residence as that person;
“auditor” includes a partnership of auditors or an auditor that is incorporated;(vérificateur)
“beneficial interest” or “beneficial ownership” includes ownership through a trustee, personal representative, agent or other intermediary and, in the case of a security, includes the interest of an entitlement holder, as defined in the Securities Transfer Act, with respect to that security, but does not include the interest of an entitlement holder that is a securities intermediary, as defined in the Securities Transfer Act, that has established a security entitlement, as defined in the Securities Transfer Act, in favour of its entitlement holder with respect to that security; (droit à titre de bénéficiaire) ou (propriété à titre de bénéficiaire)
“body corporate” includes a company or other body corporate wherever or however incorporated;(personne morale)
“body corporate” Repealed: 2023, c.2, s.2
“certificated security” means a certificated security as defined in the Securities Transfer Act;(valeur mobilière avec certificat)
“corporation” means a body corporate incorporated or continued under this Act or to which this Act applies and not discontinued under this Act;(société) ou (société par actions)
“corporation” Repealed: 2023, c.2, s.2
“Court” means The Court of King’s Bench of New Brunswick;(Cour)
“debt obligation” means a bond, debenture, note or other evidence of indebtedness or guarantee of a corporation, whether secured or unsecured;(titre de créance)
“Director” means the Director appointed under section 184 and includes a deputy director authorized under section 184 to carry out the duties and to exercise the powers of the Director under this Act;(Directeur)
“director” means a person occupying the position of director of a corporation by whatever name called and “directors” and “board of directors” includes a single director;(administrateur)
“extra-provincial corporation” means a body corporate incorporated or created otherwise than by or under an Act of the Legislature;(société extraprovinciale)
“extra-provincial corporation” Repealed: 2023, c.2, s.2
“individual” means a natural person;(particulier)
“liability” includes an obligation arising under a contract referred to in section 39, under a claim referred to in subsection 131(25) and under an order referred to in paragraphs 166(3)(f) and (g);(passif)
“ordinary resolution” means a resolution passed by a majority of the votes cast by the shareholders who voted in respect of that resolution;(résolution ordinaire)
“person” means an individual, partnership, association, body corporate or personal representative;(personne)
“personal representative” means a person who stands in place of and represents another person, including a trustee, an executor, an administrator, a liquidator of a succession, an attorney for property, an administrator of the property of others, a guardian or tutor, a curator, a receiver or an agent;(représentant personnel)
“prescribed” means prescribed by or pursuant to the regulations;(prescrit)
“redeemable share” means a share issued by a corporation(action rachetable)
(a) that the corporation may purchase or redeem upon the demand of the corporation, or
(b) that the corporation is required by its articles to purchase or redeem at a specified time or upon the demand of a shareholder;
“registered form” means a registered form as defined in the Securities Transfer Act;(nominatif)
“registered office” means the office of a corporation located in New Brunswick in the place and at the address specified in the notice most recently filed under section 17;(bureau enregistré)
“security” means a share of any class or series of shares or a debt obligation of a corporation and includes a certificate or document evidencing such a share or debt obligation;(valeur mobilière)
“security interest” means an interest or right in or charge on property of a corporation to secure payment of a debt or performance of any other obligation of the corporation;(sûreté)
“send” includes deliver;(envoyer)
“series” in relation to shares means a division of a class of shares;(série)
“shareholder” includes the personal representative of a shareholder;(actionnaire)
“special resolution” means a resolution passed by not less than two-thirds of the votes cast by the shareholders who voted in respect of that resolution or signed by all the shareholders entitled to vote on that resolution;(résolution spéciale)
“unanimous shareholder agreement” means an agreement described in subsection 99(1) or a declaration of a shareholder described in subsection 99(3).(convention unanime des actionnaires)
“uncertificated security” means an uncertificated security as defined in the Securities Transfer Act;(valeur mobilière sans certificat)
“warrant” means any certificate or other evidence of a conversion privilege, option or right to acquire a share or other security of a corporation. (bon de souscription )
1(2)For the purposes of this Act,
(a) one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person; and
(b) if two bodies corporate are affiliated with the same body corporate at the same time, they shall be deemed to be affiliated with each other.
1(3)For the purposes of this Act, a body corporate is controlled by a person or by two or more bodies corporate if
(a) securities of the body corporate to which are attached more than 50% of the votes that may be cast to elect directors of the body corporate are held, other than by way of security only, by or for the benefit of that person or by or for the benefit of those bodies corporate, and
(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate.
1(4)A body corporate is the holding body corporate of another if that other body corporate is its subsidiary.
1(5)A body corporate is a subsidiary of another body corporate if
(a) it is controlled by
(i) that other body corporate,
(ii) that other body corporate and one or more bodies corporate, each of which is controlled by that other body corporate, or
(iii) two or more bodies corporate, each of which is controlled by that other body corporate, or
(b) it is a subsidiary of a body corporate that is a subsidiary of that other body corporate.
1983, c.15, s.1; 1989, c.6, s.1; 1993, c.52, s.1; 2000, c.9, s.1; 2022, c.16, s.1; 2023, c.2, s.2; 2023, c.2, s.155; 2023, c.17, s.17
Application
2(1)This Act, except where it is otherwise expressly provided, applies to
(a) every corporation incorporated and every body corporate continued as a corporation under this Act that has not been discontinued under this Act,
(b) every body corporate with share capital incorporated under a special Act of the Legislature after this Act comes into force, and
(c) after five years of the coming into force of this Act, every other body corporate with share capital incorporated under a general or special Act of the Legislature, except a body corporate to which section 16 or 18 of the Companies Act applies or which is incorporated under or subject to Part II of that Act, and such body corporate shall be deemed to have been continued under this Act.
2(2)This Act, except where it is otherwise expressly provided, does not apply to a body corporate incorporated or continued under the Cooperatives Act or to a body corporate incorporated or continued under the Credit Unions Act.
2(3)A body corporate incorporated or continued under the Companies Act, except a body corporate to which section 16 or 18 of the Companies Act applies or which is incorporated under or subject to Part II of that Act, may apply for a certificate of continuance under section 192.
2(4)A body corporate incorporated under a special Act of the Legislature with share capital may apply for a certificate of continuance under section 192.
2(5)Notwithstanding any other provision of this Act, where a body corporate incorporated under letters patent or special Act of the Legislature is continued or deemed to have been continued under this Act, any provisions in the letters patent, special Act or supplementary letters patent, and any powers of the body corporate, which are valid immediately before the coming into force of this Act continue to be valid and to have effect, but any amendments thereto shall be made in accordance with this Act.
2(6)An extra-provincial corporation is subject to Part XVII only.
2(7)The Winding Up Act and the Companies Act do not apply to a corporation to which this Act applies.
2(8)This Act does not apply
(a) to a provincial company as defined in the Loan and Trust Companies Act or a body corporate referred to in paragraph 2(b) of that Act except as that Act otherwise provides, or
(b) to an insurance company.
1984, c.17, s.1; 1986, c.18, s.1; 1987, c.L-11.2, s.279; 1992, c.C-32.2, s.308; 1996, c.62, s.2; 2017, c.55, s.4; 2019, c.24, s.182; 2023, c.2, s.3; 2023, c.2, s.155
Administration
2.1Service New Brunswick is responsible for the administration of this Act.
2002, c.29, s.1
II
INCORPORATION
Incorporation
2023, c.2, s.155
3(1)One or more individuals may incorporate by signing articles of incorporation and complying with section 4 if
(a) they are not less than 19 years of age,
(b) they have not been found incapable of managing their affairs by a court or tribunal in Canada or elsewhere, and
(c) they do not have the status of bankrupt.
3(2)One or more bodies corporate may incorporate a corporation by signing articles of incorporation and complying with section 4.
2023, c.2, s.4
Articles of incorporation
4(1)Articles of incorporation shall be in the form provided by the Director and shall set out, in respect of the proposed corporation,
(a) the name of the corporation;
(b) Repealed: 1993, c.52, s.2
(c) the classes and any maximum number of shares that the corporation is authorized to issue and any maximum aggregate amount for which such shares may be issued, and
(i) if there will be two or more classes of shares, the rights, privileges, restrictions and conditions attaching to each class of shares,
(ii) if a class of shares may be issued in series, the authority given to the directors to fix the number of shares in, and to determine the designation of, and the rights, privileges, restrictions and conditions attaching to, the shares of each series,
(iii) if the shares will be of one kind only, the par value of each share or a statement that the shares are without par value, and
(iv) if the shares are of both kinds, any maximum number of shares of each kind, the par value of each share having par value and a statement that the other kind of shares are without par value;
(d) if the issue, transfer or ownership of the shares of the corporation is to be restricted, a statement to that effect and a statement as to the nature of the restrictions;
(e) the number of directors or any minimum and maximum number of directors of the corporation; and
(f) any restrictions on the businesses that the corporation may carry on.
4(2)The articles may set out any provisions permitted by this Act or by law to be set out in the by-laws of the corporation or a unanimous shareholder agreement.
4(3)Subject to subsection (4), if the articles or a unanimous shareholder agreement require a greater number of votes of directors or shareholders than that required by this Act to effect any action, the provisions of the articles or of the unanimous shareholder agreement prevail.
4(4)The articles may not require a greater number of votes of shareholders to remove a director than the number required by subsection 65(6).
1983, c.15, s.2; 1993, c.52, s.2; 2014, c.50, s.1; 2023, c.2, s.5; 2023, c.2, s.155; 2023, c.2, s.156
Delivery of articles
5An incorporator shall send to the Director articles of incorporation and the documents required by sections 17 and 64.
2023, c.2, s.155
Certificate of incorporation
2023, c.2, s.155
6(1)Subject to subsection (2), on receipt of articles of incorporation, the Director shall issue a certificate of incorporation.
6(2)The Director may refuse to issue a certificate of incorporation if the information required in a notice under subsection 17(2) or 64(1) indicates that the corporation, if it came into existence, would not be in compliance with this Act.
2023, c.2, s.6
Effect of issue of certificate of incorporation
7(1)A corporation comes into existence on the date shown in the certificate of incorporation.
7(2)A certificate of incorporation is conclusive proof for the purposes of this Act and for all other purposes
(a) that the provisions of this Act in respect of incorporation and all requirements precedent and incidental to incorporation have been complied with, and
(b) that the corporation has been incorporated under this Act as of the date shown in the certificate of incorporation.
2023, c.2, s.155
Name of corporation and related issues
2023, c.2, s.156
8(1)The word “Limited”, “Limitée”, “Incorporated”, “Incorporée”, or “Corporation” or the abbreviation “Ltd.”, “Ltée”, “Inc.” or “Corp.” shall be part, other than only in a figurative or descriptive sense, of the name of every corporation but a corporation may use and may be legally designated by either the full or the abbreviated form.
8(2)The Director may exempt a body corporate continued as a corporation under this Act from the provisions of subsection (1).
8(3)Subject to subsection 10(1), a corporation may set out its name in its articles in an English form, a French form, an English form and a French form or in a combined English and French form and it may use and may be legally designated by any such form.
8(4)Subject to subsection 10(1), a corporation may, for use outside Canada, set out its name in its articles in any language form and it may use and may be legally designated by its name in any such form outside Canada.
8(5)A corporation shall set out its name in legible characters in all contracts, invoices, negotiable instruments and orders for goods or services issued or made by or on behalf of the corporation.
8(6)Repealed: 2023, c.2, s.7
2000, c.9, s.2; 2023, c.2, s.7; 2023, c.2, s.155; 2023, c.2, s.156
Reservation of name and designating number
2023, c.2, s.156
9(1)The Director may, upon request, reserve for ninety days a name for an intended corporation or for a corporation about to change its name.
9(2)If requested to do so by the incorporator or a corporation, the Director shall assign to the corporation as its name a designating number determined by the Director.
2023, c.2, s.155; 2023, c.2, s.156
Prohibited and assigned names
2023, c.2, s.156
10(1)A corporation shall not be incorporated with, continued with or have a name
(a) that is the name or deceptively similar to the name of another corporation, a body corporate registered under Part XVII, a company under the Companies Act, a limited partnership formed or continued under the Limited Partnership Act, an extra-provincial partnership that has filed a declaration under the Limited Partnership Act or a firm or person that has registered under the Partnerships and Business Names Registration Act unless such corporation, body corporate, partnership, firm or person consents and, in the case of a corporation, company under the Companies Act, partnership, other than an extra-provincial partnership, firm or person, except in such circumstances as may be prescribed, undertakes to change its name within six months of giving its consent;
(a.1) that is the name of a body corporate incorporated by or under an Act of the Parliament of Canada;
(b) that is prohibited by regulation or is deceptively misdescriptive;
(c) that is reserved for another corporation or intended corporation under section 9;
(d) that is reserved for an extra-provincial corporation or an intended extra-provincial corporation under section 198; or
(e) that is reserved for a body corporate, firm or person under any other Act of the Legislature.
10(2)If, through inadvertence or otherwise, a corporation
(a) comes into existence or is continued with a name, or
(b) upon an application to change its name, is granted a name,
that contravenes this section, the Director may
(c) with the consent of the corporation, change the name of the corporation, or
(d) after giving the corporation an opportunity to be heard, direct the corporation to change its name in accordance with section 113.
10(3)When a corporation has been directed under subsection (2) to change its name and has not within sixty days from the service of the directive to that effect changed its name to a name that complies with this Act, the Director may revoke the name of the corporation and assign to it a name and, until changed in accordance with section 113, the name of the corporation is thereafter the name so assigned.
10(4)When a corporation gives an undertaking to change its name and does not carry out the undertaking or dissolve within the time specified, the Director may, after giving the corporation an opportunity to be heard, revoke the name of the corporation and assign to it a name and, until changed in accordance with section 113, the name of the corporation is thereafter the name so assigned.
10(5)When a person who is not a corporation gives an undertaking to change the name under which that person carries on business and does not carry out the undertaking or cease to carry on business under that name within the time specified, the Director may, after giving the corporation that acquired the name by virtue of the undertaking an opportunity to be heard, revoke the name of the corporation and assign to it a name and, until changed in accordance with section 113, the name of the corporation is thereafter the name so assigned.
1983, c.15, s.3; 1984, c.17, s.2; 1984, c.L-9.1, s.48; 1986, c.62, s.22; 1989, c.6, s.2; 2000, c.9, s.3; 2023, c.2, s.8; 2023, c.2, s.155; 2023, c.2, s.156
Certificate of amendment of name
11(1)When a corporation has had its name changed by the Director under subsection 10(2) or revoked and a name assigned to it under subsection 10(3), (4) or (5), the Director shall issue a certificate of amendment showing the new name of the corporation and shall forthwith give notice of the change of name in The Royal Gazette.
11(2)The articles of the corporation are amended accordingly on the date shown in the certificate of amendment.
1983, c.15, s.4; 1984, c.17, s.3; 1987, c.6, s.5; 2023, c.2, s.155; 2023, c.2, s.156
Contracts made before incorporation
2023, c.2, s.155
12(1)Except as provided in this section, a person who enters into a contract in the name of or purportedly on behalf of a corporation before it comes into existence is personally bound by the contract and is entitled to the benefits thereof.
12(2)A corporation may, within a reasonable time after it comes into existence, by any action or conduct signifying its intention to be bound thereby, adopt an oral or written contract made before it came into existence in its name or on its behalf, and upon such adoption
(a) the corporation is bound by the contract and is entitled to the benefits thereof as if the corporation had been in existence at the date of the contract and had been a party thereto; and
(b) a person who purported to act in the name of or on behalf of the corporation ceases, except as provided in subsection (3), to be bound by or entitled to the benefits of the contract.
12(3)Except as provided in subsection (4), whether or not an oral or written contract made before the coming into existence of a corporation is adopted by the corporation, a party to the contract may apply, within a reasonable time after the date of incorporation of such corporation, to the Court for an order fixing obligations under the contract as joint or joint and several or apportioning liability between or among the corporation and a person who purported to act in the name of or on behalf of the corporation and upon such application the Court may make any order it thinks fit.
12(4)If expressly so provided in the oral or written contract, a person who purported to act in the name of or on behalf of the corporation before it came into existence is not bound by the contract or entitled to the benefits thereof.
2023, c.2, s.155
III
CAPACITY AND POWERS
Capacity of a corporation
2023, c.2, s.155
13(1)A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
13(2)A corporation has the capacity to carry on its business, conduct its affairs and exercise its powers outside New Brunswick.
13(3)No corporation shall have the capacity
(a) Repealed: 1983, c.15, s.5
(a.1) to accept from the public deposits within the meaning of the Canada Deposit Insurance Corporation Act, chapter C-3 of the Revised Statutes of Canada, 1970;
(a.2) to execute the office of executor, administrator, guardian of a minor’s estate or representative under the Supported Decision-Making and Representation Act;
(a.3) to provide services of a fiduciary nature commonly provided by a trust company;
(b) to carry on the business of a loan company or trust company as defined in the Loan and Trust Companies Act or of an insurance company;
(c) to carry on any business or activity if incorporation for the purposes thereof is provided for in any other Act; or
(d) to practice a profession except as expressly permitted by an Act governing that profession.
13(4)Paragraphs (3)(a.2) and (a.3) do not apply so as to restrict
(a) a professional corporation as defined in the Law Society Act, 1996, in relation to the practice of law or the provision of services directly associated with the practice of law,
(b) a corporation that is not offering its services to the public
(i) from acting as a trustee of a trust, and
(ii) from acting as an executor of a deceased person’s estate.
1983, c.15, s.5; 1986, c.18, s.2; 1987, c.L-11.2, s.279; 2000, c.9, s.4; 2022, c.60, s.67; 2023, c.2, s.9; 2023, c.2, s.155
Powers of a corporation
2023, c.2, s.155
14(1)It is not necessary for a by-law to be passed in order to confer any particular power on the corporation or its directors.
14(2)A corporation shall not carry on any business or exercise any power that it is restricted by its articles from carrying on or exercising, nor shall the corporation exercise any of its powers in a manner contrary to its articles.
14(3)No act of a corporation, including any transfer of property to or by a corporation, is invalid by reason only that the act or transfer is contrary to its articles or this Act.
14(4)When one individual is the sole shareholder of the corporation and also the sole director, no act of the corporation is invalid by reason only that the act is contrary to the by-laws or articles of the corporation.
2023, c.2, s.10; 2023, c.2, s.155
No constructive notice
15No person is affected by or shall be deemed to have notice or knowledge of the contents of a document concerning a corporation by reason only that the document has been filed by the Director or is available for inspection at an office of the corporation.
2023, c.2, s.155
Authority of directors, officers and agents
16A corporation or a guarantor of an obligation of the corporation may not assert against a person dealing with the corporation, or with any person who has acquired rights from the corporation, that
(a) the articles, by-laws and any unanimous shareholder agreement have not been complied with,
(b) the persons named in the most recent notice filed by the Director under section 64 or 71 are not the directors of the corporation,
(c) the place named in the most recent notice filed under section 17 is not the registered office of the corporation,
(d) a person held out by a corporation as a director, an officer or an agent of the corporation has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the corporation or usual for such director, officer or agent,
(e) a document issued by any director, officer or agent of a corporation with actual or usual authority to issue the document is not valid or not genuine, or
(f) a sale, lease or exchange of property referred to in subsection 130(1) was not authorized,
except where the person has or, by virtue of his position with or relationship to the corporation ought to have, knowledge of that fact.
1993, c.52, s.3; 2023, c.2, s.11; 2023, c.2, s.155
IV
REGISTERED OFFICE AND RECORDS
Registered office
17(1)A corporation shall at all times have a registered office within New Brunswick.
17(1.1)No corporation shall designate a post office box as a registered office.
17(2)A notice of registered office shall be sent to the Director in the form provided by the Director together with any articles of incorporation, continuance or amalgamation and, if applicable, any articles of arrangement or reorganization.
17(3)Unless the articles otherwise provide, the directors of a corporation may change the place or address of the registered office.
17(4)A corporation shall file with the Director, within fifteen days after any change in the place or address of its registered office, a notice in the form provided by the Director.
1991, c.27, s.5; 1993, c.52, s.4; 2014, c.50, s.2; 2023, c.2, s.12; 2023, c.2, s.155
Records
18(1)A corporation shall prepare and maintain, at its registered office or at any other place in New Brunswick designated by the directors, records containing
(a) copies of the articles and the by-laws, and all amendments thereto, and a copy of any unanimous shareholder agreement;
(b) minutes of all meetings and resolutions of shareholders;
(c) copies of all notices required by section 64 or 71;
(d) a securities register complying with section 48; and
(e) the names and addresses of all persons who are or have been directors of the corporation with the several dates at which each became or ceased to be a director.
18(1.1)Despite subsection (1), when the shares of any class or series of a corporation are listed on an exchange as defined in the Securities Act and the articles of the corporation so permit, a corporation may prepare and maintain its securities register at a place within or outside Canada.
18(2)In addition to the records described in subsection (1), a corporation shall prepare and maintain adequate accounting records and records containing minutes of meetings and resolutions of the directors and any committees thereof.
18(3)For the purposes of subsections (1) and (2), where a body corporate is continued under this Act, “records” includes similar records required by law to be maintained by the body corporate before it was so continued.
18(4)The records described in subsection (2) shall be kept at the registered office of the corporation or at such other place as the directors think fit and shall at all reasonable times be open to inspection by the directors.
2023, c.2, s.13; 2023, c.2, s.155
Access to records by directors, shareholders and creditors
2023, c.2, s.155
19(1)The directors and shareholders of a corporation, their agents, their legal representatives and the Director may examine the records referred to in subsection 18(1) during the usual business hours of the corporation without charge.
19(1.1)Instead of allowing an examination under subsection (1), a corporation may provide a paper copy or electronic copy of the securities register referred to in the records described in subsection 18(1).
19(2)A shareholder of a corporation is entitled upon request and without charge to one copy of the articles and by-laws and of any unanimous shareholder agreement, and amendments to them.
19(3)A creditor of a corporation or a judgment creditor of a shareholder, and any agent or legal representative of such creditor or judgment creditor, may examine the records referred to in paragraphs 18(1)(a), (c), (d) and (e), other than a unanimous shareholder agreement, during the usual business hours of the corporation upon payment of a reasonable fee, and may make copies of those records.
2023, c.2, s.14; 2023, c.2, s.155
Storage of records
20(1)All registers and other records required by this Act to be prepared and maintained may be in a bound or loose-leaf form, or may be entered or recorded by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
20(2)A corporation and its agents shall take reasonable precautions to
(a) prevent loss or destruction of,
(b) prevent falsification of entries in, and
(c) facilitate detection and correction of inaccuracies in,
the registers and other records required by this Act to be prepared and maintained.
20(3)Repealed: 2008, c.11, s.4
2008, c.11, s.4; 2023, c.2, s.155
Corporate seal
2023, c.2, s.15; 2023, c.2, s.155
21(1)A corporation may adopt one or more corporate seals, and may change a corporate seal that is adopted.
21(2)An instrument or agreement executed on behalf of a corporation by a director, an officer or an agent of the corporation is not invalid merely because a corporate seal is not affixed to it.
2023, c.2, s.16; 2023, c.2, s.155
V
CORPORATE FINANCE
Shares
22(1)Shares of a corporation may be with nominal or par value or without nominal or par value or of both kinds.
22(2)If a corporation has only one class of shares, the rights of the holders of those shares are equal in all respects and include the rights
(a) to vote at any meeting of shareholders of the corporation,
(b) to receive any dividend declared by the corporation, and
(c) to receive the remaining property of the corporation on dissolution.
22(3)The articles may provide for more than one class of shares and, if they so provide,
(a) the rights, privileges, restrictions and conditions attaching to the shares of each class shall be set out in the articles, and
(b) the rights set out in subsection (2) shall be attached to at least one class of shares but all of those rights are not required to be attached to one class.
22(3.1)The articles may provide that
(a) two or more classes of shares may have the same rights, privileges, restrictions and conditions, and
(b) if a class of shares is issued in series, two or more series within the class of shares may have the same rights, privileges, restrictions and conditions.
22(4)No class of shares shall be designated as preference shares or by words of like import, unless that class has attached thereto a preference or right over some other class of shares.
2023, c.2, s.17; 2023, c.2, s.155
Issue of shares
23(1)Subject to section 27, the articles or by-laws of the corporation or a unanimous shareholder agreement, shares may be issued at such times and to such persons or class of persons as the directors may determine.
23(2)A share with par value shall not be issued except for a consideration at least equal to the par value thereof.
23(3)Shares without par value shall not be issued except for such consideration as is fixed by the directors.
23(4)Shares issued by a corporation are non-assessable and the holders are not liable to the corporation or to its creditors in respect thereof.
23(5)A share shall not be issued until it is fully paid in money or in property or past services that are not less in value than the fair equivalent of the money that the corporation would have received if the share had been issued for money.
23(6)In determining whether property or past services is the fair equivalent of money consideration, the directors may take into account reasonable charges and expenses of organization and re-organization and payments for property and past services reasonably expected to benefit the corporation.
2023, c.2, s.18; 2023, c.2, s.155
Property defined
24For the purposes of sections 23 and 25, property does not include a promissory note or a promise to pay that is made by a person to whom a share is issued, or a person who does not deal at arm’s length, within the meaning of that expression in the Income Tax Act (Canada), with a person to whom a share is issued.
2023, c.2, s.19
Stated capital account
25(1)A corporation shall maintain a separate stated capital account for each class and series of shares it issues and any such account may be expressed in Canadian or other currency.
25(2)A corporation shall add to the appropriate stated capital account
(a) the full amount of any consideration it receives for any shares it issues without par value; and
(b) the full amount of the total of the product of the number of shares of each class issued with par value multiplied by the par value thereof.
25(3)Where a corporation issues shares with par value at a premium, whether for money or otherwise as provided under subsection 23(5), the full amount of the premiums on those shares shall be added to the appropriate stated capital account.
25(4)Notwithstanding subsections 23(2) and (3) and subsections (2) and (3) of this section, if a corporation issues shares
(a) in exchange for
(i) property of a person who immediately before the exchange does not deal with the corporation at arm’s length within the meaning of that term in the Income Tax Act (Canada), or
(ii) shares of, or another interest or right in, a body corporate that immediately before the exchange, or that because of the exchange, did not deal with the corporation at arm’s length within the meaning of that expression in the Income Tax Act (Canada), or
(b) pursuant to an amalgamation agreement referred to in section 121 or an arrangement referred to in section 128 or to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated body corporate,
the corporation may add to the stated capital accounts maintained for the shares of the classes or series issued the whole or any part of the amount of the consideration it received in the exchange.
25(5)On the issue of a share a corporation shall not add to a stated capital account in respect of the share it issues an amount greater than the amount of the consideration it received for the share.
25(6)An amount that a corporation proposes to add to a stated capital account it maintains in respect of a class or series of shares shall be approved by special resolution, unless all the issued and outstanding shares are shares of not more than two classes of convertible shares referred to in subsection 37(3), if
(a) the amount to be added was not received by the corporation as consideration for the issue of shares, and
(b) the corporation has issued any outstanding shares of more than one class or series.
25(7)Subject to subsection (6), when a body corporate is continued under this Act
(a) the amount in the stated capital account maintained by a corporation in respect of each class or series of shares then issued shall be equal to the aggregate amount paid up on the shares of each such class or series of shares immediately prior thereto, and
(b) the body corporate may add to a stated capital account any amount, including premiums, it credited to a retained earning account or other surplus account.
25(8)When a body corporate is continued under this Act, subsections (2) and (3) do not apply to the consideration received by it before it was so continued unless the share in respect of which the consideration is received is issued after the corporation is so continued.
25(9)When a body corporate is continued under this Act, any amount unpaid in respect of a share issued by the body corporate before it was so continued and paid after it was so continued shall be added to the stated capital account maintained for the shares of that class or series.
25(10)Repealed: 2023, c.2, s.20
25(11)A corporation shall not reduce its stated capital or any stated capital account except in the manner provided in this Act.
25(12)Subsections (1) to (11) and any other provisions of this Act relating to stated capital do not apply to an open end mutual fund.
25(13)For the purposes of this section, “open-end mutual fund” means a corporation that makes a distribution to the public of its shares and that carries on only the business of investing the consideration it receives for the shares it issues, and all or substantially all of those shares are redeemable upon the demand of the shareholder.
25(14)Repealed: 1983, c.15, s.6
25(15)Repealed: 1983, c.15, s.6
1983, c.15, s.6; 1984, c.17, s.4; 2023, c.2, s.20; 2023, c.2, s.155
Series of shares
26(1)The articles may authorize, subject to any limitations set out in them, the issue of any class of shares in one or more series and may do either or both of the following:
(a) fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attached to the shares of, each series; and
(b) authorize the directors to fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attached to the shares of, each series.
26(2)If any cumulative dividends or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital.
26(3)No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section shall confer upon a series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding.
26(4)Before the issue of shares of a series authorized under paragraph (1)(b), the directors shall send to the Director articles of amendment in the form provided by the Director to designate a series of shares.
26(5)Upon receipt of articles of amendment designating a series of shares, the Director shall issue a certificate of amendment.
2014, c.50, s.3; 2023, c.2, s.21
Preemptive right and exceptions
27(1)In this section
“equity shares” means shares of any class, whether or not preferred as to dividends or assets, which have unlimited dividend rights;(actions d’équité)
“financial institution” means any body corporate or other institution which in its ordinary course of business lends money;(institution financière)
“preemptive right” means the right to purchase shares or other securities to be issued or subjected to rights or options to purchase, as such right is defined in this section;(droit de préemption)
“unlimited dividend right” means the right without limitation as to the amount either to all or to a share of the balance of any dividends after the payment of dividends on any shares entitled to a preference, and includes the right to all or to a share of the balance of any surplus upon winding up after the repayment of capital;(droit illimité aux dividendes)
“voting right” means the right to vote for the election of one or more directors excluding a right to vote which is dependent on the happening of an event specified in the articles or this Act;(droit de vote)
“voting shares” means the shares of any class which have voting rights as defined in this section.(actions avec droit de vote)
27(2)Except as otherwise provided in the articles and except as provided in this section, the holders of equity shares of any class, in the case of the proposed issuance by the corporation of, or the proposed granting by the corporation of rights or options to purchase, its equity shares of any class or any shares or other securities convertible into or carrying rights or options to purchase its equity shares of any class shall, if the issuance of the equity shares proposed to be issued or issuable upon exercise of such rights or options or upon conversion of such other securities would adversely affect the unlimited dividend rights of such holders, have the right during a reasonable time and on reasonable conditions, both to be fixed by the board, to purchase such shares or other securities in such proportions as shall be determined as provided in this section.
27(3)Except as otherwise provided in the articles and except as provided in this section, the holders of voting shares of any class, in case of the proposed issuance by the corporation of, or the proposed granting by the corporation of rights or options to purchase, its voting shares of any class or any shares or other securities convertible into or carrying rights or options to purchase its voting shares of any class shall, if the issuance of the voting shares proposed to be issued or issuable upon exercise of such rights or options or upon conversion of such other securities would adversely affect the voting rights of such holders, have the right during a reasonable time and on reasonable conditions, both to be fixed by the board, to purchase such shares or other securities in such proportions as shall be determined as provided in this section.
27(4)The preemptive right provided for in subsections (2) and (3) shall entitle shareholders having such rights to purchase the shares or other securities to be offered or optioned for sale as nearly as practicable in such proportions as would, if such preemptive right were exercised, preserve the relative unlimited dividend rights and voting rights of such holders and at a price or prices not less favourable at which such shares or other securities are proposed to be offered for sale to others, without deduction of such reasonable expenses of and compensation for the sale, underwriting or purchase of such shares or other securities by underwriters or dealers as may lawfully be paid by the corporation.
27(5)In case each of the shares entitling the holders thereof to preemptive rights does not confer the same unlimited dividend right or voting right, the board shall apportion the shares or other securities to be offered or optioned for sale among the shareholders having the preemptive rights to purchase them in such proportions as in the opinion of the board shall preserve as far as practicable the relative unlimited dividend rights and voting rights of the holders at the time of such offering.
27(6)The apportionment made by the board shall, in the absence of fraud or bad faith, be binding upon all shareholders.
27(7)Unless the articles expressly so provide, shareholders have no preemptive right in respect of shares to be issued
(a) as a share dividend,
(b) pursuant to the exercise of conversion privileges, options or rights previously granted by the corporation,
(c) pursuant to a corporate reorganization,
(d) as a result of an amalgamation,
(e) to a financial institution as consideration or partial consideration of a loan or the renewal of a loan from the financial institution to the corporation or as a result of an option granted to the financial institution for such consideration,
(f) under an option granted to an employee under a stock option plan or stock purchase plan which has the approval of the shareholders, or
(g) with the unanimous agreement of all shareholders.
27(8)On or after the coming into force of this section, this section does not apply to corporations whose securities are listed on an exchange recognized by a Canadian securities regulatory authority as defined under securities legislation.
27(9)On or after the date this subsection comes into force, this section does not apply to
(a) a corporation incorporated under this Act after that date, unless the articles otherwise provide,
(b) a body corporate continued under section 126 after that date, unless the articles of continuance otherwise provide, and
(c) a body corporate incorporated or created under another Act of the Legislature after that date, unless that Act otherwise provides.
27(10)A corporation may remove preemptive rights provided for in subsections (2) and (3) by special resolution.
27(11)The holders of a class or a series of shares are entitled to vote separately as a class or series on the special resolution under subsection (10) if the removal of the preemptive rights would affect the holders of shares of that class or series of shares in a manner different from the holders of shares of another class or series.
27(12)Subsection (10) applies whether or not shares of a class or series otherwise carry the right to vote.
27(13)A special resolution under this section is adopted when the holders of the shares of each class or series entitled to vote separately on the special resolution as a class or series have approved the special resolution.
27(14)The removal of the preemptive rights of a shareholder to all shares or other securities of the corporation shall be effective on the date the special resolution is adopted or on a later date specified in the resolution.
27(15)A shareholder who has voted against the special resolution may, within 20 days after the resolution has been adopted, demand payment of the fair value of their shares, and the provisions of section 131 apply with the necessary modifications.
27(16)When the articles so provide, the provisions of this section apply, except to the extent the provisions are inconsistent with the articles.
2023, c.2, s.22; 2023, c.2, s.155
Restriction regarding issuance of shares in bearer form
2022, c.16, s.2
27.1(1)Despite sections 28 and 37 and paragraph 113(1)(g), a corporation shall not issue, in bearer form, a certificate, warrant or other evidence of a conversion privilege, option, or right to acquire a share or other security of the corporation.
27.1(2)A corporation shall, on the request of a holder of a certificate, warrant or other evidence of a conversion privilege, option or right to acquire a share or other security of the corporation that is in bearer form and that was issued before the commencement of this section, issue in exchange to that holder, in registered form, a certificate, warrant or other evidence, as the case may be.
2022, c.16, s.2; 2023, c.2, s.155
Conversion privileges, options and rights
28(1)Subject to section 27, a corporation may issue a certificate, warrant or other evidence of a conversion privilege, option, or right to acquire a share or other security of the corporation, and shall set out the conditions of the certificate, warrant or other evidence
(a) in the certificate, warrant or other evidence, or
(b) in the certificate evidencing the securities to which the conversion privileges, options or rights are attached.
28(2)Conversion privileges, options and rights to acquire securities of a corporation may be made transferable or non-transferable, and options and rights to acquire may be made separable or inseparable from any securities to which they are attached.
28(3)Where a corporation has granted privileges to convert any securities issued by the corporation into shares, or into shares of another class or series, or has issued or granted options or rights to acquire shares, if the articles limit the number of authorized shares, the corporation shall reserve and continue to reserve sufficient authorized shares to meet the exercise of such conversion privileges, options and rights.
2022, c.16, s.3; 2023, c.2, s.155
Prohibition against holding own shares
29(1)Subject to sections 30 to 33, a corporation shall not hold shares in itself or in its holding body corporate.
29(2)Unless its articles provide otherwise, a subsidiary of a corporation may purchase or acquire shares of the corporation of which it is a subsidiary.
29(3)A subsidiary of a corporation shall not purchase or acquire any of the shares of its holding body corporate if there are reasonable grounds for believing that the subsidiary is, or would after the payment be, unable to pay its liabilities as they become due.
29(4)On application of a director of the holding body corporate or the purchasing or acquiring subsidiary, the Court may declare if the purchase or acquisition contravenes subsection (3).
29(5)A purchase or acquisition of shares by a subsidiary of a corporation of its holding body corporate is not invalid by reason only that it contravenes subsection (1).
2023, c.2, s.23
Exceptions
30(1)A corporation may, in the capacity of a personal representative, hold shares in itself or in its holding body corporate unless it or the holding body corporate or a subsidiary of either of them has a beneficial interest in the shares.
30(2)A corporation may hold shares in itself or in its holding body corporate by way of security for the purposes of a transaction entered into by it in the ordinary course of a business that includes the lending of money.
30(3)A corporation holding shares in itself or in its holding body corporate shall not vote or permit those shares to be voted unless the corporation holds the shares in the capacity of a personal representative.
30(4)A corporation shall not permit any of its subsidiary bodies corporate holding shares in the corporation to vote, or permit those shares to be voted, unless the subsidiary body corporate holds the shares in the capacity of a personal representative.
2023, c.2, s.24
Acquisition of corporation’s own shares
31(1)Subject to subsection (2) and to its articles, a corporation may purchase or otherwise acquire shares issued by it.
31(2)A corporation shall not make any payment to purchase or otherwise acquire shares issued by it if there are reasonable grounds for believing that
(a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due, or
(b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of its liabilities and stated capital of all classes.
2023, c.2, s.155
Purposes of acquisition and limitations
32(1)Notwithstanding subsection 31(2), but subject to subsection (3) and to its articles, a corporation may purchase or otherwise acquire shares issued by it to
(a) settle or compromise a debt or claim asserted by or against the corporation,
(b) eliminate fractional shares, or
(c) fulfill the terms of a non-assignable agreement under which the corporation has an option or is obliged to purchase shares owned by a director, an officer or an employee of the corporation.
32(2)Notwithstanding subsection 31(2), a corporation may purchase or otherwise acquire shares issued by it to
(a) satisfy the claim of a shareholder who dissents under section 131, or
(b) comply with an order under section 166.
32(3)A corporation shall not make any payment to purchase or acquire under subsection (1) shares issued by it if there are reasonable grounds for believing that
(a) the corporation is, or would after the payment, be unable to pay its liabilities as they become due, or
(b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of
(i) its liabilities, and
(ii) the amount required for payment on a redemption or in a liquidation of all shares the holders of which have the right to be paid before the holders of the shares to be purchased or acquired, to the extent that the amount has not been included in its liabilities.
2023, c.2, s.25; 2023, c.2, s.155
Purchase or redemption of redeemable shares
33(1)Notwithstanding subsection 31(2) or 32(3), but subject to subsection (2) and to its articles, a corporation may purchase or redeem any redeemable shares issued by it at prices not exceeding the redemption price of those shares stated in the articles or calculated according to a formula stated in the articles.
33(2)A corporation shall not make any payment to purchase or redeem any redeemable shares issued by it if there are reasonable grounds for believing that
(a) the corporation is, or would after the payment, be unable to pay its liabilities as they become due, or
(b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of
(i) its liabilities, and
(ii) the amount that would be required to pay the holders of shares that have a right to be paid, on a redemption or in a liquidation, rateably with or before the holders of the shares to be purchased or redeemed, to the extent that the amount has not been included in its liabilities.
2000, c.9, s.5; 2023, c.2, s.26; 2023, c.2, s.155
Share of a corporation as a gift
2023, c.2, s.155
34A corporation may accept from any shareholder a share of the corporation surrendered to it as a gift but may not extinguish or reduce a liability in respect of an amount unpaid on any such share except in accordance with section 35.
2023, c.2, s.27; 2023, c.2, s.155
Reduction of stated capital
35(1)Subject to subsection (3), a corporation may by special resolution reduce its stated capital for any purpose, including for the purpose of
(a) extinguishing or reducing a liability in respect of an amount unpaid on any share issued before a corporation is continued,
(b) distributing to the holder of an issued share of any class or series of shares an amount not exceeding the stated capital of the class or series, and
(c) declaring its stated capital to be reduced by
(i) an amount that is not represented by realizable assets, or
(ii) an amount otherwise determined in respect of which no amount is to be distributed to holders of issued shares of the corporation.
35(2)A special resolution under this section shall specify the stated capital account or accounts from which the reduction of stated capital effected by the special resolution will be deducted.
35(3)A corporation shall not reduce its stated capital for any purpose other than the purpose referred to in paragraph (1)(c) if there are reasonable grounds for believing that
(a) the corporation is, or would after the reduction, be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities.
35(4)A creditor of a corporation is entitled to apply to the Court for an order compelling a shareholder or other recipient
(a) to pay to the corporation an amount equal to any liability of the shareholder that was extinguished or reduced contrary to this section, or
(b) to pay or deliver to the corporation any money or property that was paid or distributed to the shareholder or other recipient as a consequence of a reduction of capital made contrary to this section.
35(5)An action to enforce a liability imposed by this section may not be commenced after two years from the date of the action complained of.
35(6)Repealed: 2023, c.2, s.28
2023, c.2, s.28; 2023, c.2, s.155
Adjustment of stated capital account
36(1)Upon a purchase, redemption or other acquisition by a corporation under section 31, 32, 33, 44 or 131 or paragraph 166(3)(f), of shares or fractions thereof issued by it, the corporation shall
(a) deduct from the stated capital account maintained for the class or series of shares without par value or nominal value purchased, redeemed or otherwise acquired an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series or fractions thereof purchased, redeemed or otherwise acquired, divided by the number of issued shares of that class or series immediately before the purchase, redemption or other acquisition, or
(b) deduct from the stated capital account maintained for the class or series of shares with par or nominal value, purchased, redeemed or otherwise acquired an amount equal to the par or nominal value together with any such premium allocated to such account for shares with par value or nominal value.
36(2)A corporation shall deduct the amount of a payment made by the corporation to a shareholder under paragraph 166(3)(g) from the stated capital account maintained for the class or series of shares in respect of which the payment was made.
36(3)A corporation shall adjust its stated capital account or accounts in accordance with any special resolution referred to in subsection 35(2).
36(4)Shares or fractions thereof issued by a corporation and purchased, redeemed or otherwise acquired by it may be cancelled or, if the articles limit the number of authorized shares, may be restored to the status of authorized but unissued shares.
36(5)A corporation holding shares in itself as permitted by subsections 30(1) and (2) shall be deemed not to have purchased, redeemed or otherwise acquired such shares.
1984, c.17, s.5; 2023, c.2, s.155
Conversion of shares
37(1)The articles of a corporation shall not provide for the conversion of shares with par value into shares with par value if the aggregate par value of the shares being converted is not equal to the aggregate par value of the shares into which they are converted.
37(2)Upon a conversion of shares or a change under section 113, 132 or 166 of issued shares of a corporation into shares of another class or series or kind,
(a) the corporation shall
(i) deduct from the stated capital account maintained for the class or series of shares without nominal or par value converted or changed an amount equal to the result obtained by multiplying the share capital of the shares of that class or series by the number of shares of that class or series changed, divided by the number of issued shares of that class or series immediately before the change, and
(ii) add the result obtained under subparagraph (i) and any additional consideration received by the corporation pursuant to the change to the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been changed; or
(b) the corporation shall
(i) deduct from the stated capital account maintained for the class or series of shares with nominal or par value converted or changed an amount equal to the result obtained by multiplying the number of the shares of that class or series converted or changed by the par value of that class or series, and
(ii) add the result obtained under subparagraph (i), any premiums and any additional consideration received by the corporation pursuant to the change to the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been changed.
37(3)For the purposes of subsection (2) and subject to its articles, if a corporation issues two classes of shares without par or nominal value and there is attached to each class a right to convert a share of the one class into a share of the other class and a share of one class is converted into a share of the other class, the amount of stated capital attributable to a share of either class is the aggregate of the share capital of both classes divided by the number of issued shares of both classes immediately before the conversion.
37(4)Shares issued by a corporation and converted or changed under section 113, 132 or 166 into shares of another class or series shall become issued shares of the class or series of shares into which the shares have been converted or changed.
37(5)Where the articles limit the number of authorized shares of a class or series of shares of a corporation and issued shares of that class or series have become, pursuant to subsection (4), issued shares of another class or series, the number of unissued shares of the first mentioned class or series shall, unless the articles of amendment or reorganization otherwise provide, be increased by the number of shares that, pursuant to subsection (4), became shares of another class or series.
2023, c.2, s.29; 2023, c.2, s.155
Debt obligation
38(1)Repealed: 1989, c.6, s.3
38(2)A condition contained in a debt obligation or in an instrument for securing a debt obligation is not invalid by reason only that the debt obligation is thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long.
38(3)Debt obligations issued, pledged, hypothecated or deposited by a corporation are not redeemed by reason only that the indebtedness evidenced by the debt obligations or in respect of which the debt obligations are issued, pledged, hypothecated or deposited is repaid.
38(4)Debt obligations issued by a corporation and purchased, redeemed or otherwise acquired by it may be cancelled or, subject to any applicable trust indenture or other agreement, may be re-issued, pledged or hypothecated to secure any obligation of the corporation then existing or thereafter incurred, and any such acquisition and re-issue, pledge or hypothecation is not a cancellation of the debt obligations.
1983, c.15, s.7; 1989, c.6, s.3; 2023, c.2, s.155
Contract to purchase shares of a corporation by the corporation
39(1)A contract with a corporation providing for the purchase by it of shares of the corporation is specifically enforceable against the corporation except to the extent that the corporation cannot perform the contract without thereby being in breach of section 31, 32 or 33.
39(2)In an action brought on a contract referred to in subsection (1), the corporation has the burden of proving that performance of the contract is prevented by section 31, 32 or 33.
39(3)Until the corporation has fulfilled all its obligations under a contract referred to in subsection (1), the other party to that contract retains the status of claimant and is entitled to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors and to the rights of the holders of any class of shares whose rights were in priority to the rights given to the holder of the class of shares the person purchased but in priority to the rights of the other shareholders.
2023, c.2, s.30; 2023, c.2, s.155
Authorization to pay reasonable commission
40The directors of a corporation may authorize the corporation to pay a reasonable commission to any person in consideration of his purchasing or agreeing to purchase shares of the corporation from the corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.
2023, c.2, s.155
Restrictions on payment of dividends
41A corporation may declare or pay a dividend unless there are reasonable grounds for believing that
(a) the corporation is, or would after the payment, be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities and stated capital of all classes.
2023, c.2, s.155
Method of payment of dividends
42(1)Subject to section 41, a corporation may pay a dividend in money or property or by issuing fully paid shares of the corporation.
42(2)If shares of a corporation are issued in payment of a dividend, the declared amount of the dividend stated as an amount in money shall be added to the stated capital account maintained or to be maintained for the shares of the class or series issued in payment of the dividend.
1984, c.17, s.6; 2023, c.2, s.155
Financial assistance and restrictions
43(1)In this section, “financial assistance” means financial assistance by means of a loan, a guarantee or the provision of security or otherwise.
43(2)Subject to any other provisions of this Act or the regulations, a corporation may give financial assistance to any person for any purpose.
2023, c.2, s.31
Liability of shareholders
44(1)The shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation except under section 99.
44(2)The articles, by-laws or unanimous shareholder agreement may provide that the corporation has a lien on a share registered in the name of a shareholder or in the name of the shareholder’s personal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act.
44(3)A corporation may enforce a lien referred to in subsection (2) in accordance with its articles, by-laws or a unanimous shareholder agreement.
2008, c.S-5.8, s.106; 2023, c.2, s.32; 2023, c.2, s.155
VI
SECURITY CERTIFICATES,
TRANSFERS, REGISTERS
2023, c.2, s.157
Shares — personal property
45The shares of a corporation are personal property.
2023, c.2, s.155
Transfer of shares
45.1(1)Subject to this Act and any other Act, the Securities Transfer Act applies to the transfer and transmission of the shares of a corporation.
45.1(2)The shares of a corporation are securities for the purposes of the Securities Transfer Act.
2008, c.S-5.8, s.106; 2023, c.2, s.155
Repealed
46Repealed: 2008, c.S-5.8, s.106
2008, c.S-5.8, s.106
Certificated or uncertificated securities
2023, c.2, s.33
46.1(1)A security issued by a corporation may be represented by a security certificate or may be an uncertificated security.
46.1(2)Unless otherwise provided by the corporation’s articles, the directors of a corporation may provide by resolution that any or all classes and series of its shares or other securities shall be uncertificated securities, provided that the resolution does not apply to securities represented by a certificate until the certificate is surrendered to the corporation.
46.1(3)Within a reasonable time after the issuance or transfer of an uncertificated security, the corporation shall send to the registered holder of the uncertificated security a written notice containing the information required to be stated on a security certificate in accordance with subsections 47(4) and (10).
46.1(4)Except as otherwise provided by law, the rights and obligations of the registered holders of uncertificated securities and the rights and obligations of the holders of certificated securities of the same class and series shall be identical.
2023, c.2, s.33
Security certificates
2023, c.2, s.157
47(1)Repealed: 2023, c.2, s.34
47(2)A corporation may charge a reasonable administrative fee for a security certificate issued in respect of a transfer.
47(3)A corporation required to issue a security certificate is not required to issue more than one security certificate in respect of securities held jointly by several persons, and delivery of a certificate to one of several joint holders is sufficient delivery to all.
47(4)A security certificate shall be signed by at least one of the following persons:
(a) a director or officer of the corporation;
(b) a registrar, transfer agent or branch transfer agent of the corporation or a person on behalf of that registrar or agent; and
(c) a trustee who certifies it in accordance with a trust indenture.
47(5)Repealed: 2023, c.2, s.34
47(6)If a security certificate contains a printed or mechanically reproduced signature of a person, the corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the corporation, and the security certificate is as valid as if he were a director or an officer at the date of its issue.
47(7)There shall be stated upon the face of each security certificate issued by a corporation
(a) the name of the corporation;
(b) the words “Incorporated under the Laws of New Brunswick” or words of like effect;
(c) the name of the person to whom it was issued; and
(d) the number and class of shares, the designation of any series that the certificate represents and whether the shares are with par value or without par value and, if with par value, the par value thereof.
47(8)Repealed: 2008, c.S-5.8, s.106
47(9)If a body corporate continued under this Act has outstanding security certificates, and if the words “private company” appear on the certificates, those words, for the purposes of the Securities Transfer Act, shall be deemed to be a notice that the shares or a transfer of the shares may be subject to a restriction, to a lien in favour of the corporation, to a unanimous shareholder agreement or to an endorsement under subsection 131(10).
47(10)There shall be stated legibly on a security certificate issued by a corporation that is authorized to issue shares of more than one class or series
(a) the rights, privileges, restrictions and conditions attached to the shares of each class and series; or
(b) that the class or series of shares that it represents has rights, privileges, restrictions or conditions attached thereto and that the corporation will furnish to a shareholder, on demand and without charge, a full copy of the text of
(i) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors, and
(ii) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series.
47(11)Where a security certificate issued by a corporation contains the statement mentioned in paragraph (10)(b), the corporation shall furnish to a shareholder on demand and without charge a full copy of the text of
(a) the rights, privileges, restrictions and conditions attached to each class authorized to be issued and to each series in so far as the same have been fixed by the directors; and
(b) the authority of the directors to fix the rights, privileges, restrictions and conditions of subsequent series.
47(12)A corporation may issue for each fractional share, a certificate in registered form or scrip certificate in registered form that entitle the holder to receive a certificate for a full share in exchange for scrip certificates equalling a full share.
47(12.1)A corporation shall, on the request of the holder of a certificate for a fractional share or scrip certificate that was issued in bearer form before the commencement of this subsection, issue in exchange to that holder, in registered form, a certificate for a fractional share or a scrip certificate, as the case may be.
47(13)The directors may attach conditions to any scrip certificates issued by the corporation or on behalf of the corporation, including conditions that
(a) the scrip certificates become void if not exchanged for a certificate or an uncertificated security representing a full share before a specified date, and
(b) any shares for which the scrip certificates are exchangeable may, despite any preemptive right, be issued by the corporation to any person and the proceeds thereof distributed rateably to the holders of the scrip certificates.
47(14)A holder of a fractional share issued by a corporation is not entitled to exercise voting rights or to receive a dividend in respect of the fractional share, unless
(a) the fractional share results from a consolidation of shares; or
(b) the articles of the corporation otherwise provide.
47(15)A holder of a scrip certificate is not entitled to exercise voting rights or to receive a dividend in respect of the scrip certificates.
2008, c.S-5.8, s.106; 2022, c.16, s.4; 2023, c.2, s.34; 2023, c.2, s.155; 2023, c.2, s.157
Securities register
2023, c.2, s.35
48(1)A corporation shall prepare and maintain at its registered office or any other place in New Brunswick designated by the directors a securities register in which it records the securities issued by it in registered form, showing with respect to each class or series of securities,
(a) the names, alphabetically arranged, of persons who
(i) are or have been within six years registered as shareholders of the corporation, the address including the street and number, if any, of every person while a holder, and the number and class of shares registered in the name of the holder, and
(ii) are or have been within the past six years registered as holders of warrants of the corporation, other than warrants exercisable within one year from the date of issue, and the address, including the street and number, if any, of every person while a registered holder, and the class or series and number of warrants registered in the name of the holder, and
(b) the date and particulars of the issue of each security and warrant.
48(2)A corporation shall prepare and maintain a register of transfers in which all transfers of securities issued by the corporation in registered form are maintained and the date and particulars of each transfer.
1991, c.27, s.5; 2023, c.2, s.36
Registers, general
2023, c.2, s.37
48.1(1)A corporation may appoint an agent to maintain a central securities register and branch securities registers.
48.1(2)Subject to subsection 18(1.1), a central securities register shall be maintained by a corporation at its registered office or any other place in New Brunswick designated by the directors, and any branch securities register may be kept at any place in or outside of New Brunswick designated by the directors.
48.1(3)A branch securities register shall only contain particulars of securities issued or transferred at that branch.
48.1(4)Particulars of each issue or transfer of a security registered in a branch securities register shall also be kept in the corresponding central securities register.
48.1(5)Registration of the issue or transfer of a security or warrant of the corporation in the central securities register or in the branch security registers is a complete and valid registration for all purposes.
48.1(6)A corporation or a person appointed under section 48.2 is not required to produce
(a) any security certificate or warrant that is not in registered form, or
(b) any security certificate or warrant that is in registered form after six years,
(i) in the case of a security certificate, from the date of its cancellation,
(ii) in the case of a warrant, from the date of its transfer or exercise, whichever occurs first, or
(iii) in the case of a certificate representing a debt obligation, from the date of cancellation of the certificate.
2023, c.2, s.37
Transfer agents
2023, c.2, s.37
48.2For each class of securities and warrants issued by it, a corporation may appoint
(a) a trustee, transfer agent or other agent to maintain the central securities register and the register of transfers and one or more persons or agents to maintain the branch securities registers,
(b) a registrar, trustee or agent to maintain a record of issued security certificates and warrants, and
(c) for the purposes of paragraphs (a) and (b), one person may be appointed in respect of all securities and warrants of the corporation or any class or classes.
2023, c.2, s.37
Registered shareholders
49(1)A corporation may, subject to sections 86, 87 and 90, treat the registered security holder as the person exclusively entitled to vote, to receive notices, to receive any interest, dividend or other payments in respect of the security, and otherwise to exercise all the rights and powers of an owner of the security.
49(2) A corporation whose articles or unanimous shareholder agreement restrict the right to transfer its securities shall, and any other corporation may, treat a person referred to in paragraph (a), (b) or (c) as a registered security holder entitled to exercise all the rights of the security holder that the person represents, if that person furnishes evidence as described in subsection 87(1) of the Securities Transfer Act to the corporation that the person is,
(a) the executor, administrator, administrator with will annexed, estate trustee, heir or legal representative of the heirs, of the estate of a deceased registered security holder;
(b) a guardian, attorney for property, representative under the Supported Decision-Making and Representation Act, committee, trustee or curator representing a registered security holder who is a minor, a represented person, a person who is incapable of managing their affairs or a missing person; or
(c) a liquidator of, or a trustee in bankruptcy for, a registered security holder.
49(3)A transfer of securities made by a sale under the Enforcement of Money Judgments Act or under an order or judgment of a court of competent jurisdiction, on furnishing the corporation with evidence of the sale or the order or judgment, shall be registered in the securities register of the corporation.
49(4)If a person on whom the ownership of a security devolves by operation of law, other than a person referred to in subsection (2), furnishes proof of the person’s authority to exercise rights or privileges in respect of a security of the corporation that is not registered in the person’s name, the corporation shall treat the person as entitled to exercise those rights or privileges.
49(5)A corporation is not required to inquire into the existence of, or see to the performance or observance of, any duty owed to a third person by a registered holder of any of its securities or by anyone whom it treats, as permitted or required by this section, as the owner or registered holder of its securities.
49(6)When a security is issued to several persons as joint holders, on satisfactory proof of the death of one joint holder, the corporation may treat the surviving joint holders as owners of the security.
49(7)Subject to any applicable law of Canada or a province or territory of Canada relating to the collection of taxes, a person referred to in paragraph (2)(a) is entitled to become a registered holder or to designate a registered holder, if the person deposits with the corporation or its transfer agent,
(a) the original grant of probate or of letters of administration, or a copy thereof certified to be a true copy by,
(i) the court that granted the probate or letters of administration,
(ii) a trust corporation incorporated under the laws of Canada or a province or territory of Canada, or
(iii) a lawyer or notary acting on behalf of the person; or
(b) in the case of transmission by notarial will in the Province of Quebec, a copy of the notarial will authenticated under the laws of that Province, together with,
(i) an affidavit or declaration of transmission made by the person stating the particulars of the transmission;
(ii) the security certificate that was owned by the deceased holder,
(A) in case of a transfer to the person, with or without the endorsement of that person, and
(B) in case of a transfer to any other person, endorsed in accordance with section 29 of the Securities Transfer Act, and
(iii) any assurance the issuer may require under section 87 of the Securities Transfer Act.
49(8)Despite subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration in respect of the transmission, a legal representative of the deceased holder is entitled to become, subject to any applicable law of Canada or a province or territory of Canada relating to the collection of taxes, a registered holder or to designate a registered holder if the legal representative deposits with the corporation or its transfer agent
(a) a security certificate that was owned by the deceased holder, and
(b) reasonable proof of the governing laws, the deceased holder’s interest in the security and the right of the legal representative or the person the legal representative designates to become the registered holder.
49(9)Deposit of the documents required by subsection (7) or (8) empowers a corporation or its transfer agent to record in a register of transfers the transmission of a security from the deceased holder to a person referred to in paragraph (2)(a) or to any person as the person referred to in that paragraph may designate, and thereafter, to treat the person who thus becomes a registered holder as the owner of that security.
49(10)Subsections (7), (8) and (9) do not limit any right of a person to transfer shares or obtain registration of transfers in accordance with the Securities Transfer Act.
1986, c.4, s.6; 2008, c.S-5.8, s.106; 2013, c.32, s.5; 2022, c.60, s.67; 2023, c.2, s.38; 2023, c.2, s.158
Restrictions on the transfer of shares
50(1)A corporation shall not impose restrictions on the transfer of shares except such restrictions as are authorized by the articles.
50(2)A corporation that has imposed restrictions on the transfer or ownership of a class or series of its shares shall not offer any of its shares of that class or series, or any shares convertible into shares of that class or series, to the public unless the restrictions are necessary
(a) by or under any Act of Canada or New Brunswick as a condition of the obtaining, holding or renewal of authority to engage in any activity necessary to its undertaking; or
(b) for the purpose of achieving or preserving its status as a Canadian corporation for the purpose of any Act of Canada or New Brunswick.
50(3)A corporation that violates or fails to comply with subsection (2) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
2008, c.11, s.4; 2023, c.2, s.39; 2023, c.2, s.155
Certificates, warrants or other evidence of a conversion privilege, option, or right to acquire a share or other security
2022, c.16, s.5
51(1)A corporation that has issued a certificate, warrant or other evidence of a conversion privilege, option, or right to acquire a share or other security of the corporation may provide, by coupons or otherwise, for the payment of the future dividends on the shares or other security included in the certificate, warrant or other evidence of the privilege, option or right.
51(2)A holder of a certificate, warrant or other evidence of a conversion privilege, option or right to acquire a share or other security of the corporation may, if the provisions and regulations respecting certificates, warrants or other evidence of a privilege, option or right to acquire a share or other security of the corporation contained in the articles provide, be deemed to be a shareholder of the corporation, either to the full extent or for any purposes defined by the regulations in the articles.
51(3)On the issuance of a certificate, warrant or other evidence of a conversion privilege, option, or right to acquire a share or other security of the corporation, the corporation shall remove from its share register the name of the shareholder entered in the registry as holding the shares or other security as if the holder had ceased to be a shareholder, and shall enter in the share register the following particulars:
(a) the fact of the issue of the certificate, warrant or other evidence of the privilege, option or right;
(b) a statement of the shares or other securities included in the certificate, warrant or other evidence of the privilege, option or right; and
(c) the date of the issue of the certificate, warrant or other evidence of the privilege, option or right.
51(4)Until a certificate, warrant or other evidence of a privilege, option or right to acquire a share or other security of the corporation is surrendered, the particulars referred to in subsection (3) shall be deemed to be the particulars required by this Act to be entered in the share register of the corporation in respect of the shares or other security, and, on the surrender, the date of the surrender shall be entered in the registry as if it were the date at which a person ceased to be a shareholder.
51(5)Despite subsection 47(1), a holder of a certificate, warrant or other evidence of a privilege, option or right to acquire a share or other security of the corporation is not entitled to a security certificate in respect of the shares or other security, until the certificate, warrant or other evidence of the privilege, option or right is surrendered.
51(6)Unless a holder of a certificate, warrant or other evidence of a privilege, option or right to acquire a share or other security of the corporation is entitled to attend and vote at general meetings, the shares or other security represented by the certificate, warrant or other evidence of the privilege, option or right shall not be counted as part of the capital of the corporation for the purpose of a general meeting of shareholders.
2008, c.S-5.8, s.106; 2022, c.16, s.6; 2023, c.2, s.155; 2023, c.2, s.157
VII
RECEIVERS AND RECEIVER-MANAGERS
Functions of receiver
52A receiver of any property of a corporation 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 corporation.
2023, c.2, s.155
Functions of receiver-manager
53A receiver of a corporation may, if he is also appointed receiver-manager of the corporation, carry on any business of the corporation to protect the security interest of those on behalf of whom he is appointed.
2023, c.2, s.155
Cessation of directors powers
54If a receiver-manager is appointed by the Court or under an instrument, the powers of the directors of the corporation that the receiver-manager is authorized to exercise may not be exercised by the directors until the receiver-manager is discharged.
1991, c.27, s.5; 2023, c.2, s.155
Duty to act in accordance with the directions of the Court
55A receiver or receiver-manager appointed by the Court shall act in accordance with the directions of the Court.
Duty to act under instrument of appointment
56A receiver or receiver-manager appointed under an instrument shall act in accordance with that instrument and any direction of the Court made under section 58.
Duty of care of receiver and receiver-manager
57A receiver or receiver-manager of a corporation appointed under an instrument shall
(a) act honestly and in good faith, and
(b) deal with any property of the corporation in his possession or control in a commercially reasonable manner.
2023, c.2, s.155
Powers of the Court
58Upon 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 the receiver or receiver-manager 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 corporation, 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.
2023, c.2, s.40; 2023, c.2, s.155
Duties of receiver and receiver-manager
59A receiver or receiver-manager shall
(a) without delay notify the Director of their appointment or discharge, who shall without delay cause to be published in The Royal Gazette notice of their appointment or discharge,
(b) without delay after their appointment, and from time to time after that, file with the Director a notice designating an office in New Brunswick where accounts of their administration are maintained;
(c) take into their custody and control the property of the corporation in accordance with the Court order or instrument under which they are appointed;
(d) open and maintain a bank account in their name as receiver or receiver-manager of the corporation for the money of the corporation coming under their control;
(e) keep detailed accounts of all transactions carried out as receiver or receiver-manager,
(f) keep accounts of their administration that shall be available at the office designated in paragraph (b) during usual business hours for inspection by the directors, shareholders and creditors who shall have the right to make extracts from the accounts,
(g) prepare at least once in every six month period after the date of their appointment financial statements of their administration, and
(h) on completion of their duties,
(i) render a final account of their administration
(ii) send a copy of the final report to each director of the corporation, and
(iii) retain a copy of the final report for a six-year period or any other shorter period ordered by the Court and provide access in accordance with paragraph (f).
2023, c.2, s.41
Director may request copy of account or report
2023, c.2, s.42
59.1On request of the Director, a receiver or receiver-manager shall without delay provide a copy of any account or report referred to in section 59.
2023, c.2, s.42
VIII
DIRECTORS AND OFFICERS
Power to manage and number of directors
60(1)Subject to the articles, the by-laws and a unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation.
60(2)A corporation shall have one or more directors.
60(3)Subject to the articles, the number, and the minimum and maximum number, of directors shall be as from time to time specified by the by-laws.
60(4)Despite subsection (3), a corporation that is a reporting issuer as defined in the Securities Act shall not have fewer than three directors.
1983, c.15, s.8; 2023, c.2, s.43
By-laws
61(1)Unless the articles, the by-laws or a unanimous shareholder agreement otherwise provide, the directors may by resolution make, amend or repeal any by-laws that regulate the business or affairs of the corporation.
61(2)The directors shall submit a by-law, or an amendment or a repeal of a by-law, made under subsection (1) to the shareholders at the next meeting of shareholders, and the shareholders may, by ordinary resolution, confirm or reject the by-law, amendment or repeal.
61(3)Where a by-law is made, amended or repealed under subsection (1), the by-law, amendment or repeal is effective from the date of the resolution of the directors until it is confirmed or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4), and where the by-law is confirmed it continues in effect in the form in which it was so confirmed.
61(4)If a by-law, amendment or repeal is rejected by the shareholders, or if the directors do not submit a by-law, amendment or a repeal to the shareholders as required under subsection (2), the by-law, amendment or repeal ceases to be effective and no subsequent resolution of the directors, within two years after the date on which the by-law, amendment or repeal ceases to be effective, to enact, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed by the shareholders.
61(5)A shareholder entitled to vote at an annual meeting of the shareholders may, in accordance with section 89, make a proposal to make, amend or repeal a by-law and, if adopted by the shareholders at the meeting, the by-law, amendment or repeal is effective from the date of its adoption and requires no further confirmation by the shareholders.
61(6)Unless the articles, the by-laws or a unanimous shareholder agreement otherwise provide, the articles of a corporation shall be deemed to state that the directors of a corporation may, without authorization of the shareholders,
(a) borrow money upon the credit of the corporation;
(b) issue, reissue, sell or pledge debt obligations of the corporation;
(c) give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the corporation, owned or subsequently acquired, to secure any obligation of the corporation.
61(7)Notwithstanding subsection 73(2) and paragraph 78(a), unless the articles, by-laws or a unanimous shareholder agreement otherwise provide, the directors may by resolution delegate any or all of the powers referred to in subsection (6) to a director, a committee of directors or an officer.
1983, c.15, s.9; 1991, c.27, s.5; 2023, c.2, s.44; 2023, c.2, s.155
Meeting of first directors and quorum
62(1)After issue of the certificate of incorporation, a meeting of the first directors of the corporation shall be held at which the first directors may
(a) make by-laws;
(b) adopt forms of security certificates;
(c) authorize the issue of securities;
(d) elect or appoint officers;
(e) appoint any auditor to hold office until the first annual meeting of shareholders;
(f) make banking arrangements; and
(g) transact any other business.
62(2)Subsection (1) does not apply to a body corporate to which a certificate of amalgamation has been issued under subsection 124(4) or to which a certificate of continuance has been issued under subsection 126(4).
62(3)An incorporator or a first director may call the meeting of first directors referred to in subsection (1) by giving not less than five days notice thereof by mail to each director, stating the time and place of the meeting.
62(3.1)If all the directors have died before the first meeting of directors is held, the incorporator may send a notice of change of directors referred to in subsection 71(1) and set out the names and addresses of the new directors who will carry out the responsibilities as first directors of the corporation as set out in subsection (1).
62(4)A first director may waive notice of a meeting of first directors.
62(5)If there are more than two first directors, a majority of the directors shall constitute a quorum and an act of the majority of the quorum shall be deemed to be an act of the first directors.
62(6)A resolution in writing signed by each first director entitled to receive notice of a meeting of first directors shall be as valid as if it has been passed at a meeting of the first directors duly convened and held.
1983, c.15, s.10; 2023, c.2, s.45
Requirements to be a director
63(1)The following persons are disqualified from being a director of a corporation:
(a) anyone who is less than nineteen years of age;
(b) anyone who has been found incapable of managing their affairs by a court or tribunal in Canada or elsewhere;
(c) a person who is not an individual, unless the person is a body corporate that meets the requirements of subsection (1.1);
(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.
63(2)Unless the articles otherwise provide, a director of a corporation is not required to hold shares issued by the corporation.
63(3)A person who is elected or appointed a director is not a director unless
(a) he was present at the meeting when he was elected or appointed and did not refuse to act as a director, or
(b) if he was not present at the meeting when he was elected or appointed,
(i) he consented to act as a director in writing before his election or appointment or within ten days thereafter, or
(ii) he has acted as a director pursuant to the election or appointment.
1983, c.15, s.11; 2023, c.2, s.46; 2023, c.2, s.155
Notice of directors and term of office
64(1)At the time of sending articles of incorporation, the incorporators shall send to the Director a notice of directors in the form provided by the Director and the Director shall file the notice.
64(2)Each director named in the notice referred to in subsection (1) holds office from the issue of the certificate of incorporation until the first meeting of shareholders.
64(3)Despite subsection (2), if directors are not elected at the first meeting of shareholders, the incumbent directors continue in office until their successors are elected.
64(3.1)When directors are elected at a meeting of shareholders they may hold office for the same term, but any term shall expire no later than the close of the third annual meeting of shareholders following their election and, if they are not elected for an expressly stated term, they cease to hold office at the close of the first annual meeting of shareholders following their election.
64(4)If a meeting of shareholders fails to elect the number or the minimum number of directors required by the articles or under section 60 by reason of a disqualification under subsection 63(1), the lack of consent under subsection 63(3) or a death of any candidates, the directors elected at that meeting may exercise all the powers of the directors if the number or the minimum number of directors elected constitutes a quorum.
2014, c.50, s.4; 2023, c.2, s.47
Election and removal of directors
65(1)Each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by him multiplied by the number of directors to be elected, and he may cast all such votes in favour of one candidate or distribute them among the candidates in any manner.
65(2)A separate vote of shareholders shall be taken with respect to each candidate nominated for director unless a resolution is passed unanimously permitting two or more persons to be elected by a single resolution.
65(3)If a shareholder has voted for more than one candidate without specifying the distribution of his votes among the candidates, he shall be deemed to have distributed his votes equally among the candidates for whom he voted.
65(4)If the number of candidates nominated for director exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled.
65(5)Despite subsection 64(3.1), each director elected in a vote under this section ceases to hold office at the close of the first annual meeting of shareholders following their election.
65(6)A director may not be removed from office if the votes cast against his removal would be sufficient to elect him and such votes could be voted pursuant to subsection (1) at an election at which the same total number of votes were cast and the number, or the minimum or maximum number, of directors required by the articles or under section 60 were then being elected.
65(7)On or after the date this subsection comes into force, subsections (1) to (6) do not apply to
(a) a corporation incorporated under this Act after that date, unless the articles otherwise provide,
(b) a body corporate continued under section 126 after that date, unless the articles of continuance otherwise provide, and
(c) a body corporate incorporated or created by or under another Act of the Legislature after that date, unless that Act otherwise provides.
65(8)On or after the coming into force of this section, a corporation may by a resolution of the holders of voting shares provide that subsections (1) to (6) do not apply to the corporation, unless the articles of the corporation expressly provide otherwise.
65(9)A resolution under subsection (8) shall not be effective if the votes cast against the resolution would be sufficient to elect a director under this section.
65(10)A resolution under subsection (8) shall be effective on the day the resolution is adopted or a later day as specified in the resolution.
2023, c.2, s.48
Cessation of office or resignation of directors
66(1)A director of a corporation ceases to hold office when
(a) he dies or resigns;
(b) he is removed in accordance with section 67; or
(c) he becomes disqualified under subsection 63(1).
66(2)A resignation of a director becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later.
2023, c.2, s.155
Removal and replacement of directors
67(1)Subject to subsection 65(6), the shareholders of a corporation may by ordinary resolution at a special meeting remove any director or directors from office.
67(2)Where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors, a director so elected may only be removed by an ordinary resolution at a meeting of the shareholders of that class or series.
67(3)Subject to subsections 65(1) to (4), a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed or, if not so filled, may be filled under section 69.
67(3.1)If all the directors have resigned or have been removed without replacement, a person who manages or supervises the management of the business and affairs of the corporation is deemed to be a director for the purposes of this Act.
67(3.2)Subsection (3.1) does not apply to
(a) an officer who manages the business or affairs of the corporation under the direction or control of a shareholder or other person,
(b) a lawyer, accountant or other professional who participates in the management of the corporation solely for the purpose of providing professional services, or
(c) a trustee in bankruptcy, receiver, receiver-manager or secured creditor who participates in the management of the corporation or exercises control over its property solely for the purpose of the realization of security or, in the case of a trustee in bankruptcy, the administration of a bankrupt’s estate.
2023, c.2, s.49; 2023, c.2, s.155
Attendance of directors at shareholders meeting
68A director of a corporation is entitled to receive notice of and to attend and be heard at every meeting of shareholders.
Filling of vacancies
69(1)Subject to subsections (3) and (4), a quorum of directors may fill a vacancy among the directors, except a vacancy resulting from an increase in the number, or the minimum or maximum number, of directors or from a failure to elect the number or the minimum number of directors required by the articles or under section 60.
69(2)If there is not a quorum of directors, or if there has been a failure to elect the number or the minimum number of directors required by the articles or under section 60, the directors then in office shall forthwith call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any shareholder.
69(3)Where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors and a vacancy occurs among those directors,
(a) subject to subsection (4), the remaining directors elected by that class or series may fill the vacancy except a vacancy resulting from an increase in the number, or the minimum or maximum number, of directors for that class or series or from a failure to elect the number or the minimum number of directors for that class or series; or
(b) if there are no such remaining directors any holder of shares of that class or series may call a meeting of the holders thereof for the purpose of filling the vacancy.
69(4)The articles or a unanimous shareholder agreement may provide that a vacancy among the directors shall only be filled by a vote of the shareholders, or by a vote of the holders of any class or series of shares having an exclusive right to elect one or more directors if the vacancy occurs among the directors elected by that class or series.
69(5)A director appointed or elected to fill a vacancy holds office for the unexpired term of his predecessor.
69(6)When the articles provide, the directors may appoint one or more additional directors who shall hold office for a term expiring not later than the close of the next annual meeting of shareholders, but the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders.
2023, c.2, s.50; 2023, c.2, s.155
Increase or decrease in number of directors
70(1)The shareholders of a corporation may amend the articles or by-laws to increase or, subject to subsection (2), to decrease the number of directors, or the minimum or maximum number of directors, but no decrease shall shorten the term of an incumbent director.
70(2)To the extent that subsection 65(1) applies to a corporation, the number of directors required by the articles or under section 60 may not be decreased if the votes cast against the motion to decrease would be sufficient to elect a director and the votes could be voted in accordance with subsection 65(1) at an election at which the same total number of votes were cast and the number or the minimum number of directors required by the articles or under section 60 were then being elected.
2023, c.2, s.51
Notice of change of directors
71(1)Within fifteen days after a change is made among its directors, a corporation shall send to the Director a notice in the form provided by the Director setting out the change and the Director shall file the notice.
71(2)Any interested person, or the Director, may apply to the Court for an order to require a corporation to comply with subsection (1), and the Court may so order and make any further order it thinks fit.
2014, c.50, s.5; 2023, c.2, s.155
When notice no longer accurate
2023, c.2, s.52
71.1(1)When the address of a director is no longer accurate as set out in a notice of directors under subsection 64(1) or a notice of change of directors under subsection 71(1), a corporation
(a) may send a notice of change of directors to the Director, and the Director shall file the notice, and
(b) on the request of the Director, shall send a notice of change of directors to the Director within 60 days after the request, and the Director shall file the notice.
71.1(2)A notice of change of directors referred to in subsection (1) shall be on a form provided by the Director under subsection 71(1) and shall include all current directors and their current addresses.
2023, c.2, s.52
Meeting of directors
72(1)Unless the articles or the by-laws otherwise provide, the board of directors may meet at any place within or outside of New Brunswick and on the notice as the by-laws require.
72(2)When the by-laws of the corporation provide, a director may by proxy appoint another director to act at a meeting of directors or a meeting of a committee of directors in the manner and to the extent authorized by the proxy, and the director giving the proxy is deemed to be present at the meeting if the proxyholder is present.
72(3)Subject to the articles or by-laws, a majority of the number or the minimum number of directors required by the articles or under section 60 constitutes a quorum at any meeting of directors, and, notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors.
72(4)Unless otherwise provided in the articles or by-laws, notice of the time and place of a meeting of directors shall be sent not less than seven days before the meeting.
72(5)A director may in any manner waive a notice of a meeting of directors and attendance of a director at a meeting of directors is a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
72(6)Notice of an adjourned meeting of directors is not required to be given if the time and place of the adjourned meeting is announced at the original meeting.
72(7)Where a corporation has only one director, that director may constitute a meeting.
72(8)Unless otherwise provided in the articles or by-laws, a director may participate in a meeting of directors or of a committee of directors by means of telephone, electronic or other communication facilities that permit all persons participating in the meeting to communicate adequately with each other during the meeting, and a director participating in the meeting by those means is present at the meeting for the purposes of this Act.
2000, c.9, s.6; 2023, c.2, s.53; 2023, c.2, s.155
Delegation of powers to managing director or committees
73(1)Directors of a corporation may appoint from their number a managing director or one or more committees of directors and delegate to such managing director or committees any of the powers of the directors.
73(2)Notwithstanding subsection (1), no managing director and no committee of directors has authority to
(a) submit to the shareholders any question or matter requiring the approval of the shareholders;
(b) fill a vacancy among the directors, or if an auditor has been appointed, in the office of auditor or appoint additional directors;
(c) issue securities except in the manner and on the terms authorized by the directors;
(d) declare dividends;
(e) purchase, redeem or otherwise acquire shares issued by the corporation;
(f) pay a commission referred to in section 40 except as authorized by the directors;
(g) approve any financial statements of the corporation referred to in section 100; or
(h) adopt, amend or repeal by-laws.
73(3)The appointment of a managing director or committee of directors does not relieve the directors of a corporation from any liability imposed by law.
2023, c.2, s.54; 2023, c.2, s.155
Act valid notwithstanding irregularity in election
74An act of a director or officer is valid notwithstanding an irregularity in his election or appointment or a defect in his qualification.
Validity of resolution in absence of meeting
75(1)Subject to the articles, a resolution in writing signed by all directors or signed counterparts of such resolution 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 has been passed at a meeting of directors or committee of directors duly called, constituted and held.
75(2)Every resolution or counterpart thereof referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors or committee of directors.
1983, c.15, s.12
Liability of directors
76(1)Subject to subsection (6), directors of a corporation who vote for or consent to a resolution authorizing the issue of a share under section 23 for a consideration other than money are jointly and severally liable to the corporation to make good any amount by which the consideration received is less than the fair equivalent of the money that the corporation would have received if the share had been issued for money on the date of the resolution.
76(2)Directors of a corporation who vote for or consent to a resolution authorizing
(a) a purchase, redemption or other acquisition of shares contrary to section 31, 32 or 33,
(b) a commission contrary to section 40,
(c) a payment of a dividend contrary to section 41,
(d) Repealed: 2023, c.2, s.55
(e) a payment of an indemnity contrary to section 81, or
(f) a payment to a shareholder contrary to section 131 or 166,
are jointly and severally liable to restore to the corporation any amounts so distributed or paid and not otherwise recovered by the corporation.
76(3)A director who has satisfied a judgment rendered under this section is entitled to contribution from the other directors who voted for or consented to the unlawful act upon which the judgment was founded.
76(4)A director liable under subsection (2) is entitled to apply to the Court for an order compelling a shareholder or other recipient to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 31, 32, 33, 40, 41, 81, 131 or 166.
76(5)In connection with an application under subsection (4), the Court may, if it is satisfied that it is equitable to do so,
(a) order a shareholder or other recipient to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other recipient;
(b) order a corporation to return or issue shares to a person from whom the corporation has purchased, redeemed or otherwise acquired shares; or
(c) make any further order it thinks fit.
76(6)A director is not liable under subsection (1) if he proves that he did not know and could not reasonably have known that the share was issued for a consideration less than the fair equivalent of the money that the corporation would have received if the share had been issued for money.
76(7)An action to enforce a liability imposed by this section may not be commenced after two years from the date of the resolution authorizing the action complained of.
2023, c.2, s.55; 2023, c.2, s.155
Disclosure of interest of director or officer in contracts
77(1)A director or officer of a corporation shall disclose in writing to the corporation, or request to have entered in the minutes of meetings of directors the nature and extent of their interest, if the director or officer
(a) is a party to a material contract, proposed material contract, material transaction or proposed material transaction with the corporation, or
(b) is a director or an officer of or has a material interest in any person who is a party to a material contract, proposed material contract, material transaction or proposed material transaction with the corporation.
77(2)The disclosure required by subsection (1) shall be made, in the case of a director, at the meeting at which a proposed contract or transaction is first considered, or if not,
(a) if the director was not at the time of the meeting interested in a proposed contract or transaction, at the first meeting after the director becomes interested,
(b) if the director becomes interested after a contract or transaction is made, at the first meeting after the director becomes interested, or
(c) if a person who is interested in a contract or transaction later becomes a director, at the first meeting after the person becomes a director.
77(3)The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director,
(a) immediately after the officer becomes aware that the contract or transaction or proposed contract or transaction is to be considered or has been considered at a meeting of directors,
(b) if the officer becomes interested after a contract or transaction is made, immediately after the officer becomes interested, or
(c) if a person who is interested in a contract or transaction later becomes an officer, immediately after the person becomes an officer.
77(4)If a material contract or material transaction or proposed material contract or proposed material transaction is one that, in the ordinary course of the corporation’s business, would not require approval by the directors or shareholders, a director or officer shall disclose in writing to the corporation, or request to have entered in the minutes of meetings of directors, the nature and extent of the director’s or officer’s interest immediately after the director or officer becomes aware of the contract or transaction or proposed contract transaction.
77(5)A director referred to in subsection (1) shall not attend any part of a meeting of directors during which the contract or transaction is discussed and shall not vote on any resolution to approve the contract or transaction unless the contract or transaction is
(a) one relating primarily to their remuneration as a director of the corporation or an affiliate,
(b) one for indemnity or insurance under section 81, or
(c) one with an affiliate.
77(6)If no quorum exists for the purpose of voting on a resolution to approve a contract or transaction only because a director is not permitted to be present at the meeting by reason of subsection (5), the remaining directors shall be deemed to constitute a quorum for the purposes of voting on the resolution.
77(7)When all the directors are required to make disclosure under subsection (1), the contract or transaction may be approved only by the shareholders.
77(8)For the purposes of this section, a general notice to the directors by a director or officer disclosing that they are a director or officer of or have a material interest in a person, or that there has been a material change in the director’s or officer’s interest in the person, and that they are to be regarded as interested in any contract made or any transaction entered into with that person, is sufficient disclosure of interest in relation to the contract or transaction.
77(9)The shareholders of the corporation may examine the portions of any minutes of meetings of directors or of committees of directors that contain disclosures under this section, and any other documents that contain those disclosures, during the usual business hours of the corporation.
77(10)A director or officer referred to in subsection (1) is liable to account to the corporation and its shareholders for any profit made on the contract or transaction, unless
(a) the director or officer disclosed their interest in accordance with subsections (2), (3) and (4),
(b) after the disclosure, the contract or transaction was approved by the directors or the shareholders, and
(c) the director or officer establishes that the contract or transaction was reasonable and fair to the corporation at the time it was approved.
77(11)When a director or officer of a corporation fails to comply with this section, the Court may, on the application of the corporation or a shareholder of the corporation, set aside the contract or transaction on any terms as it thinks fit and direct that the director or officer account to the corporation and its shareholders for any profit made on the contract or transaction.
77(12)Despite anything in this section, a director or officer is not accountable to the corporation and its shareholders for any profit made on the contract or transaction
(a) if the contract or transaction is confirmed or approved by a majority of the votes cast by disinterested shareholders at a general meeting called for that purpose,
(b) if the nature and extent of the director’s or officer’s interest are declared and disclosed in reasonable detail in the notice calling the meeting, and
(c) the contract or transaction was reasonable and fair to the corporation at the time it was approved or confirmed.
77(13)This section does not apply to a director or officer of a corporation all of whose shares are owned by one person.
1983, c.15, s.13; 2000, c.9, s.7; 2023, c.2, s.56
Appointment of officers
78Subject to the articles, the by-laws or a unanimous shareholder agreement,
(a) the directors may designate the offices of the corporation, appoint as officers persons of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the corporation, except powers to do anything referred to in subsection 73(2);
(b) a director may be appointed to any office of the corporation; and
(c) two or more offices of the corporation may be held by the same person.
2023, c.2, s.57; 2023, c.2, s.155
Duty of care of directors and officers
79(1)Every director and officer of a corporation in exercising his powers and discharging his duties shall
(a) act honestly and in good faith, and
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances
in the best interests of the corporation.
79(2)Every director and officer of a corporation shall comply with this Act, the regulations, articles, by-laws and a unanimous shareholder agreement.
79(3)Subject to subsection 99(5), no provision in a contract, the articles, the by-laws or a resolution relieves a director or officer from the duty to act in accordance with this Act or the regulations or relieves him from liability for a breach thereof.
2023, c.2, s.155
Dissent by directors
80(1)A director who is present at a meeting of directors or committee of directors shall be deemed to have consented to any resolution passed or action taken thereat unless
(a) he requests that his dissent be or his dissent is entered in the minutes of the meeting;
(b) he sends his written dissent to the secretary of the meeting before the meeting is adjourned; or
(c) he sends his dissent by registered mail or delivers it to the registered office of the corporation immediately after the meeting is adjourned.
80(2)A director who votes for or consents to a resolution is not entitled to dissent under subsection (1).
80(3)A director is not liable under section 76, and has complied with their duties under subsection 79(2), if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on
(a) financial statements of the corporation represented to the director by an officer of the corporation or a written report of the auditor of the corporation that fairly reflects the financial condition of the corporation,
(b) a report or advice of an officer or employee of the corporation, when it is reasonable in the circumstances to rely on the report or advice, or
(c) a report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by the professional person.
80(4)A director has complied with their duties under subsection 79(1) if the director relied in good faith on
(a) financial statements of the corporation represented to the director by an officer of the corporation or a written report of the auditor of the corporation that fairly reflects the financial condition of the corporation,
(b) a report or advice of an officer or employee of the corporation, when it is reasonable in the circumstances to rely on the report or advice, or
(c) a report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by the professional person.
1983, c.15, s.14; 2023, c.2, s.58; 2023, c.2, s.155
Indemnification of directors and officers
81(1)A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity.
81(2)A corporation may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1), but the individual shall repay the moneys if the individual does not fulfil the conditions set out in subsection (3).
81(3)A corporation shall not indemnify an individual under subsection (1) unless the individual
(a) acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request, and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful.
81(4)A corporation may, with the approval of the Court, indemnify an individual referred to in subsection (1), or advance moneys under subsection (2), in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individual’s association with the corporation or other entity as described in subsection (1) against all costs, charges and expenses reasonably incurred by the individual in connection with the action, if the individual fulfils the conditions set out in subsection (3).
81(5)Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described in subsection (1), if the individual seeking indemnity
(a) was not judged by the Court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done, and
(b) fulfils the conditions set out in subsection (3).
81(6)A corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection (1) against any liability incurred by the individual
(a) in the individual’s capacity as a director or officer of the corporation, or
(b) in the individual’s capacity as a director or officer, or a similar capacity, of another entity, if the individual acts or acted in that capacity at the corporation’s request.
81(7)On application by a corporation, an individual or other person referred to in subsection (1) to the Court may make an order approving an indemnity under this section and any further order it thinks fit.
81(8)On an application under subsection (7), the Court may order notice to be given to any interested person, and the person is entitled to appear and be heard in person or by counsel.
1994, c.64, s.1; 2023, c.2, s.59
Remuneration of directors, officers and employees
82Subject to the articles, the by-laws or a unanimous shareholder agreement, the directors of a corporation may fix the remuneration of the directors, officers and employees of the corporation.
2023, c.2, s.155
Confidential information and restrictions imposed on insiders
83(1)The following definitions apply in this section.
“business combination” means an acquisition of all or substantially all the property of one body corporate by another or an amalgamation of two or more bodies corporate.(regroupement d’entreprises)
“corporation” means a corporation that is not a reporting issuer as defined in the Securities Act.(société)
“insider” , with respect to a corporation, means (initié)
(a) the corporation,
(b) an affiliate,
(c) a director or officer of the corporation,
(d) a person who has a beneficial interest, directly or indirectly, of more than 10% of the voting securities of the corporation or who exercises control or direction over more than 10% of the votes attached to the voting securities of the corporation,
(e) a person employed or retained by the corporation, or
(f) a person who receives specific confidential information from a person described in this definition or in subsection (3), including a person described in this paragraph, and who has knowledge that the person giving the information is a person described in this definition or in subsection (3), including a person described in this paragraph.
“security” includes a warrant.(valeur mobilière)
83(2)For the purposes of this section,
(a) a director or officer of a body corporate that is an insider of a corporation is deemed to be an insider of the corporation,
(b) a director or officer of a body corporate that is a subsidiary of the corporation is deemed to be an insider of its holding corporation;
(c) a person is deemed to have a beneficial interest in outstanding voting securities, as defined in the Securities Act, when a body corporate controlled by the person directly or indirectly has a beneficial interest in the voting securities, and
(d) a body corporate is deemed to have a beneficial interest in voting securities, as defined in the Securities Act, that are beneficially owned by its affiliate.
83(3)For the purposes of this section,
(a) when a body corporate becomes an insider of a corporation or enters into a business combination with a corporation, a director or an officer of the body corporate or a shareholder of the body corporate who is a person referred to in paragraph (d) of the definition of “insider” in subsection (1) is deemed to have been an insider of the corporation for the previous six months or for any shorter period as they are a director, an officer or a shareholder of the body corporate, and
(b) when a corporation becomes an insider of a body corporate or enters into a business combination with a body corporate, a director or an officer of the body corporate or a shareholder of the body corporate who is a person referred to in paragraph (d) of the definition of “insider” in subsection (1) is deemed to have been an insider of the corporation for the previous six months or for any shorter period as they are a director, an officer or a shareholder of the body corporate.
83(4)An insider who, in connection with a transaction in a security of the corporation or any of its affiliates, makes use of any specific confidential information for the insider’s own benefit or advantage that, if generally known, might reasonably be expected to affect materially the value of the security,
(a) is liable to compensate any person for any direct loss suffered by that person as a result of the transaction, unless the information was known or in the exercise of reasonable diligence should have been known to that person, and
(b) is accountable to the corporation for any direct benefit or advantage received or receivable by the insider as a result of the transaction.
83(5)No action shall be brought under subsection (4) after two years from the day on which the plaintiff first knew or ought reasonably to have known that the conduct giving rise to the action took place.
1983, c.15, s.15; 2009, c.L-8.5, s.29; 2023, c.2, s.60
IX
SHAREHOLDERS
Place of meetings
84(1)Meetings of shareholders of a corporation shall be held at the place within New Brunswick provided in the by-laws, or, in the absence of such provision, at the place within New Brunswick that the directors determine.
84(2)Notwithstanding subsection (1), a meeting of shareholders of a corporation may be held outside New Brunswick if all the shareholders entitled to vote at that meeting so agree, and a shareholder who attends a meeting of shareholders held outside New Brunswick shall be deemed to have so agreed except when he attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held.
84(3)Notwithstanding subsections (1) and (2), if the articles so provide, meetings of shareholders may be held outside New Brunswick at one or more places specified in the articles.
2023, c.2, s.155
Calling meetings and participation by telephone
85(1)The directors of a corporation shall call an annual meeting of shareholders
(a) not later than 18 months after the date of its incorporation or, in the case of an amalgamated corporation, the date of its certificate of amalgamation, and
(b) subsequently, not later than 15 months after holding the last preceding annual meeting, but no later than six months after the end of the corporation’s preceding financial year.
85(2)The directors of a corporation may at any time call a special meeting of shareholders.
85(3)Despite subsection (1), the corporation may apply without notice to any person to the Court for an order extending the time in which the first or a subsequent annual meeting of shareholders shall be held.
85(4)Despite subsection (1), when there is a resolution passed unanimously by all holders of voting shares, the corporation may extend the time by up to three months in which the first or a subsequent annual meeting of shareholders shall be held.
85(5)Unless the articles or by-laws otherwise provide, a shareholder or any other person entitled to attend a meeting of shareholders may participate in the meeting by means of telephone or electronic or other communication facilities.
85(6)If the directors of a corporation call a meeting of shareholders under this Act, the directors may determine that the meeting shall be held entirely by means of telephone or electronic or other communication facilities, unless the articles or the by-laws otherwise provide.
85(7)A communication facility referred to in this section shall permit all participants to communicate adequately with each other during the meeting, and the shareholder or other person who, through those means, votes at the meeting or establishes a communications link to the meeting shall be deemed for the purposes of this Act to be present at the meeting and the corporation shall determine the manner of voting at that meeting.
2023, c.2, s.61
Fixing record date
86(1)For the purpose of determining shareholders
(a) entitled to receive payment of a dividend, or
(b) entitled to participate in a liquidation distribution,
or for any other purpose except the right to receive notice of or to vote at a meeting the directors may fix in advance a date as the record date for such determination of shareholders, but such record date shall not precede by more than fifty days the particular action to be taken.
86(2)For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, the directors may fix in advance a date as the record date for such determination of shareholders, but such record date shall not precede by more than 60 days or by less than 21 days the date on which the meeting is to be held.
86(3)If no record date is fixed,
(a) the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders shall be
(i) at the close of business on the day immediately preceding the day on which the notice is given, or
(ii) if no notice is given, the day on which the meeting is held; and
(b) the record date for the determination of shareholders for any purpose other than to establish a shareholder’s right to receive notice of a meeting or to vote shall be at the close of business on the day on which the directors pass the resolution relating thereto.
2023, c.2, s.62
Notice of meeting, exception and adjournment
87(1)Subject to the articles or a unanimous shareholder agreement, notice of the time and place of a meeting of shareholders shall be sent not less than 10 days nor more than 50 days before the meeting
(a) to each shareholder entitled to vote at the meeting,
(b) to each director, and
(c) to the auditor, if any.
87(1.1)In the case of a corporation that is not a reporting issuer as defined under the Securities Act, the notice of the time and place of a meeting of shareholders may be sent within a shorter period than the period set out in subsection (1) if specified in the articles or by-laws.
87(1.2)The requirements of subsection (1) are deemed to be satisfied when a notice of a meeting of shareholders and any related documents are posted on a website that can be accessed by the shareholder without a fee payment and a notice is sent to the shareholder informing the shareholder that the notice of a meeting of shareholders and related documents have been posted and explaining how to access them.
87(1.3)A corporation may send the notice informing the shareholder referred to in subsection (1.2) to the shareholder by electronic communication if
(a) the shareholder has consented to being sent the notice and any related documents by electronic communication,
(b) the articles provide for the sending of the notice and any related documents by electronic communication, or
(c) the corporation is a reporting issuer as defined under the Securities Act.
87(1.4)If a director or auditor has consented, the notice of a meeting of shareholders and any related documents may be provided to a director or auditor, as the case may be, in accordance with subsection (1.2) .
87(2)A notice of a meeting is not required to be sent to shareholders who were not registered on the records of the corporation or its transfer agent on the record date determined under subsection 86(2) or (3), but failure to receive a notice does not deprive a shareholder of the right to vote at the meeting.
87(3)If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of sixty days or more, notice of the adjourned meeting shall be given as for an original meeting.
87(4)All business transacted at a special meeting of shareholders and all business transacted at an annual meeting of shareholders, except consideration of the financial statements, auditor’s report, election of directors and reappointment of the incumbent auditor, if any, shall be deemed to be special business.
87(5)Notice of a meeting of shareholders at which special business is to be transacted shall state
(a) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon, and
(b) the text of any special resolution to be submitted to the meeting.
2023, c.2, s.63; 2023, c.2, s.155
Waiver of notice of meeting
88A shareholder and any other person entitled to attend a meeting of shareholders may in any manner either before or after the meeting waive notice of a meeting of shareholders, and attendance of any such person at a meeting of shareholders is a waiver of notice of the meeting, except where he attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Shareholders proposals
89(1)A shareholder entitled to vote at an annual meeting of shareholders may
(a) submit to the corporation notice of any matter that he proposes to raise at the meeting, hereinafter referred to as a “proposal”; and
(b) discuss at the meeting any matter in respect of which he would have been entitled to submit a proposal.
89(2)A corporation shall set out the proposal in the notice of meeting required by section 87 or attach the proposal thereto.
89(3)If so requested by the shareholder, the corporation shall include in the notice of meeting or attach thereto a statement by the shareholder of not more than five hundred words in support of the proposal, and the name and address of the shareholder.
89(4)A proposal may include nominations for the election of directors if the proposal is signed by one or more holders of shares representing in the aggregate not less than ten percent of the shares or ten percent of the shares of a class of shares of the corporation entitled to vote at the meeting to which the proposal is to be presented, but this subsection does not preclude nominations made at a meeting of shareholders.
89(5)A corporation is not required to comply with subsections (2) and (3)
(a) if the proposal is not submitted to the corporation at least 90 days before the anniversary date of the notice of meeting that was sent to shareholders in connection with the previous annual meeting of shareholders;
(b) if it appears to the directors that the proposal is submitted by the shareholder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the corporation or its directors, officers or shareholders, or for a purpose that is not related in any significant way to the business or affairs of the corporation;
(c) if the corporation, at the shareholder’s request, included a proposal in a notice of meeting relating to a meeting of shareholders held within two years preceding the receipt of such request, and the shareholder failed to present the proposal, in person or by proxy, at the meeting;
(d) if substantially the same proposal was submitted to shareholders in a notice of meeting relating to a meeting of shareholders held within two years preceding the receipt of the shareholder’s request and the proposal was defeated; or
(e) if the rights conferred by this section are being abused to secure publicity.
89(6)No corporation or person acting on its behalf incurs any liability by reason only of circulating a proposal or statement in compliance with this section.
89(7)If a corporation refuses to include a proposal in a notice of meeting, the corporation shall, within ten days after receiving the proposal, notify the shareholder submitting the proposal of its intention to omit the proposal from the notice of meeting and send to him a statement of the reasons for the refusal.
89(8)Upon the application of a shareholder claiming to be aggrieved by a corporation’s refusal under subsection (7), the Court may restrain the holding of the meeting to which the proposal is sought to be presented and make any other or further order it thinks fit.
89(9)The corporation or any person claiming to be aggrieved by a proposal may apply to the Court for an order permitting the corporation to omit the proposal from the notice of meeting, and the Court, if it is satisfied that subsection (5) applies, may make such order as it thinks fit.
89(10)An applicant under subsection (8) or (9) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel.
2023, c.2, s.64; 2023, c.2, s.155
Shareholders list
90(1)A corporation shall prepare a list of shareholders entitled to receive notice of a meeting, arranged in alphabetical order and showing the number of shares held by each shareholder,
(a) if a record date is fixed under subsection 86(2) not later than ten days after that date; or
(b) if no record date is fixed,
(i) at the close of business on the day immediately preceding the day on which the notice is given, or
(ii) where no notice is given, on the day on which the meeting is held.
90(2)A shareholder whose name appears on a list of shareholders prepared under subsection (1) is entitled to vote the shares shown opposite the shareholder’s name at the meeting to which the list relates.
90(3)Repealed: 2023, c.2, s.65
90(4)A shareholder may examine the list of shareholders
(a) during usual business hours at the registered office of the corporation or at the place where its central securities register is maintained; and
(b) at the meeting of shareholders for which the list was prepared.
2000, c.9, s.8; 2023, c.2, s.65; 2023, c.2, s.155
Appointment of proxyholder and related issues
91(1)A shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders who are not required to be shareholders, which proxyholders shall have all the rights of the shareholder to attend and act at the meeting in the place and stead of the shareholder except to the extent limited by the proxy.
91(2)A proxy shall be executed by the shareholder or by their personal representative in writing.
91(3)A proxy is valid
(a) at the meeting in respect of which it is given or any adjournment thereof, or
(b) at any meeting held during the period specified in a proxy which period shall not exceed fourteen months but a proxy shall be valid for only one annual meeting during that period.
91(4)A shareholder may revoke a proxy
(a) by depositing a written instrument of revocation or a proxy of later date executed by him or by his attorney authorized in writing
(i) at a registered office of the corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment thereof, at which the proxy is to be used, or
(ii) with the chairman of the meeting on the day of the meeting or an adjournment thereof; or
(b) in any other manner permitted by law.
91(4.1)A shareholder or the shareholder’s personal representative may sign a proxy or a revocation of proxy.
91(5)The directors may specify in a notice calling a meeting of shareholders a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding the meeting or adjournment thereof before which time proxies to be used at the meeting must be deposited with the corporation or its agent.
1983, c.15, s.16; 2023, c.2, s.66; 2023, c.2, s.155
Quorum and absence of quorum
92(1)Unless the articles, by-laws or a unanimous shareholder agreement otherwise provide, the holder or holders of the majority of the shares entitled to vote at a meeting of shareholders present in person or by proxy constitute a quorum.
92(2)If a quorum is present at the opening of a meeting of shareholders, the shareholders present in person or represented by proxy may, unless the articles, by-laws or a unanimous shareholder agreement otherwise provide, proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting.
92(3)If a quorum is not present at the opening of a meeting of shareholders, the shareholders present in person or represented in proxy may adjourn the meeting to a fixed time and place but not transact any other business.
92(4)If a corporation has only one shareholder, or only one holder of any class or series of shares, or if only one person is present at a meeting holding or representing sufficient shares to constitute a quorum, the shareholder present in person or by proxy constitutes a meeting.
2023, c.2, s.155
Right to vote, exercising right to vote
93(1)Unless the articles otherwise provide, each share of a corporation entitles the holder thereof to one vote at a meeting of shareholders.
93(2)If a body corporate or association is a shareholder of a corporation, the corporation shall recognize any individual authorized by a resolution of the directors or governing body of the body corporate or association to represent it at meetings of shareholders of the corporation.
93(3)An individual authorized under subsection (2) may exercise on behalf of the body corporate or association he represents all the powers it could exercise if it were an individual shareholder.
93(4)Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present, in person or by proxy, vote, they shall vote as one on the shares jointly held by them.
2023, c.2, s.67; 2023, c.2, s.155
Vote by show of hands or secret ballot
94(1)Unless the by-laws otherwise provide, voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting.
94(2)A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands.
94(3)Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
2023, c.2, s.68
Resolution in writing
95(1)A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
95(2)A resolution in writing dealing with all matters required by this Act to be dealt with at a meeting of shareholders, and signed by all the shareholders or signed counterparts of such resolution by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Act relating to meetings of shareholders duly called, constituted and held.
95(3)A copy of every resolution or counterpart thereof referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders.
1983, c.15, s.17; 2000, c.9, s.9
Meeting called by shareholders
96(1)The holders of not less than ten per cent of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition.
96(2)The requisition referred to in subsection (1), which may consist of several documents of like form each signed by one or more shareholders, shall state the business to be transacted at the meeting and shall be sent to each director and to the registered office of the corporation.
96(3)Upon receiving the requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless
(a) a record date has been fixed under subsection 86(2);
(b) the directors have called a meeting of shareholders and have given notice thereof under section 87; or
(c) the business of the meeting as stated in the requisition includes matters described in paragraphs 89(5)(b) to (e).
96(4)Except where subsection (3) applies, if the directors do not within twenty-one days after receiving the requisition referred to in subsection (1) call a meeting, any shareholder who signed the requisition may call the meeting.
96(5)A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws and this Part.
96(6)Unless the requisitionists have not acted in good faith and in the interest of shareholders, the corporation shall
(a) reimburse the requisitionists the expenses reasonably incurred by them in requisitioning, calling and holding the meeting, and
(b) withhold rateably the amount the requisitionists were reimbursed from money due or to become due by way of fees or other remuneration to each director who was in default in not calling the meeting.
2023, c.2, s.69; 2023, c.2, s.155
Meeting called by the Court
97(1)If for any reason it is impracticable to call a meeting of shareholders of a corporation in the manner in which meetings of those shareholders may be called or to conduct the meeting in the manner prescribed by the by-laws, the articles or this Act, or if for any other reason the Court thinks fit, the Court, on the application of a director or a shareholder entitled to vote at the meeting, may order a meeting to be called, held and conducted in any manner as the Court directs and may impose any terms on the order as the Court sees fits, including terms as to the security for the costs of holding the meeting.
97(2)Without restricting the generality of subsection (1), the Court may order that the quorum required by the by-laws, articles or this Act be varied or dispensed with at a meeting called, held and conducted pursuant to this section.
97(3)A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the corporation duly called, held and conducted.
2023, c.2, s.70; 2023, c.2, s.155
Powers of the Court
98(1)A corporation or a shareholder or director may apply to the Court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.
98(2)Upon an application under this section, the Court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining a director or auditor, if any, whose election or appointment is challenged from acting pending determination of the dispute;
(b) an order declaring the result of the disputed election or appointment;
(c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the corporation until a new election is held or appointment made; and
(d) an order determining the voting rights of shareholders and of persons claiming to own shares.
2023, c.2, s.155
Pooling agreement
2023, c.2, s.71
98.1A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as provided in the agreement.
2023, c.2, s.71
Shareholders agreement
99(1)An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation is valid.
99(2)A unanimous shareholder agreement may provide that any amendment of the unanimous shareholder agreement may be effected in the manner specified in the agreement.
99(3)If a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, the declaration is deemed to be a unanimous shareholder agreement.
99(4)A purchaser or transferee of shares subject to a unanimous shareholder agreement shall be deemed to be a party to the agreement.
99(5)A shareholder who is a party to a unanimous shareholder agreement has all the rights, powers, duties and liabilities of a director of a corporation, whether arising under this Act or otherwise, including any defences available to the directors, to which the agreement relates to the extent that the agreement restricts the discretion or powers of the directors to manage, or supervise the management of, the business and affairs of the corporation and the directors are relieved of their duties and liabilities to the same extent.
99(6)Nothing in this section prevents shareholders from fettering their discretion when exercising the powers of directors under a unanimous shareholder agreement.
99(7)A close corporation by-law under section 78 of the Companies Act shall be deemed to be a unanimous shareholder agreement for the purposes of this Act.
99(8)If a unanimous shareholder agreement is in effect when a person who was not otherwise a party to the agreement acquires a share of the corporation,
(a) the person who acquired the share shall be deemed to be a party to the agreement whether or not that person had actual knowledge of it when the person acquired the share, and
(b) neither the acquisition of the share nor the registration of that person as a shareholder operates to terminate the agreement.
99(9)If a person referred to in subsection (8) is a purchaser for value without notice of the unanimous shareholder agreement and the security certificate, if any, did not contain reference to the unanimous shareholder agreement, the person may, within 60 days after the person actually receives a complete copy of the agreement, send to the corporation and, if applicable, the transferor, a notice of objection.
99(10)If a person sends a notice of objection under subsection (9), that person is entitled to
(a) rescind the contract or subscription, as applicable, under which the shares were acquired by giving notice to that effect to the corporation and the transferor, if any, within 60 days after the person actually receives a complete copy of the unanimous shareholder agreement, or
(b) demand that the transferor or corporation, as the case may be, pay the person the fair value of the shares held by them, determined as of the close of business on the day on which the person delivers the notice of objection to the corporation, in which case subsections 131(3), (15) and (16) apply with the necessary modifications.
2000, c.9, s.10; 2023, c.2, s.72
IX.1
REGISTER OF INDIVIDUALS WITH SIGNIFICANT CONTROL
2022, c.16, s.7
Definitions
2022, c.16, s.7
99.1The following definitions apply in this Part.
“police force” means a police force established for a local government or for a region or the Royal Canadian Mounted Police.(corps de police)
“register” means a register of individuals with significant control over a corporation prepared and maintained by a corporation under section 99.3. (registre)
“regulatory body” means any of the following: (organisme de réglementation)
(a) the Financial and Consumer Services Commission continued under the Financial and Consumer Services Commission Act;
(b) the Financial Transactions and Reports Analysis Centre of Canada established under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); and
(c) a prescribed corporation, agency or other entity or any employee or officer of a prescribed corporation, agency or other entity whose authority to regulate is based on a law of the Province or Canada.
2022, c.16, s.7; 2023, c.2, s.155
Significant control over corporation
2022, c.16, s.7; 2023, c.2, s.155
99.11(1)For the purposes of this Part and subject to any class of prescribed exclusions, each of the following individuals is an individual with significant control over a corporation: 
(a) an individual who has any of the following interests or rights, or any combination of them, in a significant number of shares of the corporation:
(i) the individual is the registered holder of the shares,
(ii) the individual is the beneficial owner of the shares, or
(iii) the individual has direct or indirect control or direction over the shares; and
(b) an individual to whom prescribed circumstances apply.
99.11(2)Two or more individuals are each an individual with significant control over a corporation if, in respect of a significant number of shares of the corporation,
(a) an interest, right or a combination of interests or rights referred to in paragraph (1)(a) is held jointly by those individuals, or
(b) a right or a combination of rights referred to paragraph (1)(a) is subject to any agreement or arrangement under which the right or rights are to be exercised jointly or in concert by those individuals.
2022, c.16, s.7; 2023, c.2, s.155
Significant number of shares
2022, c.16, s.7
99.2For the purposes of this Part, a significant number of shares of a corporation is
(a) any number of shares that carry 25% or more of the voting rights attached to all of the corporation’s outstanding voting shares, or
(b) any number of shares that is equal to 25% or more of all of the corporation’s outstanding voting shares.
2022, c.16, s.7; 2023, c.2, s.155
Register of individuals with significant control over corporation
2022, c.16, s.7; 2023, c.2, s.155
99.3(1)A corporation shall prepare and maintain, at its registered office or at any other prescribed place, a register of individuals with significant control over the corporation that contains the following information: 
(a) the name, date of birth and last known address of each individual with significant control over the corporation;
(b) the jurisdiction of residence for income tax purposes of each individual with significant control over the corporation;
(c) the day on which each individual became or ceased to be an individual with significant control over the corporation;
(d) a description of how each individual is an individual with significant control over the corporation, including a description of their interests and rights in respect of shares of the corporation;
(e) a description of each step taken in accordance with subsection (2); and
(f) any other prescribed information.
99.3(2)At least once during each financial year of a corporation, the corporation shall take reasonable steps, including any prescribed steps, to ensure that it has identified all individuals with significant control over the corporation and that the information in the register is accurate, complete and up-to-date.
99.3(3)When a corporation becomes aware of any information referred to in paragraph (1)(a), (b), (c), (d), (e) or (f) as a result of steps taken in accordance with subsection (2) or through any other means, the corporation shall record that information in the register within 15 days of becoming aware of it.
99.3(4)When a corporation requests information referred to in paragraph (1)(a), (b), (c), (d), (e) or (f) from one of its shareholders, the shareholder shall, to the best of the shareholder’s knowledge, reply accurately and completely as soon as possible.
99.3(5)Within one year after the sixth anniversary of the day on which an individual ceases to be an individual with significant control over the corporation, the corporation, subject to any other laws of the Province or of Canada that provide for a longer retention period, shall dispose of any of that individual’s personal information, as defined in the Right to Information and Protection of Privacy Act, that is recorded in the register.
99.3(6)A corporation that, without reasonable cause, violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
99.3(7) A shareholder who, without reasonable cause, violates or fails to comply with subsection (4) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
2022, c.16, s.7; 2023, c.2, s.155
Disclosure of information to Director or prescribed body
2022, c.16, s.7
99.4(1)A corporation shall disclose to the Director, on request, any information in its register.
99.4(2)On request by a prescribed body that has investigative powers in relation to offences under this Act, a corporation shall, as soon as possible after the request is made to the corporation, and in the manner specified by the prescribed body,
(a) provide the prescribed body with a copy of the corporation’s register, or
(b) disclose to the prescribed body any information specified by that body that is in the corporation’s register.
99.4(3)A corporation that violates or fails to comply with subsection (1) or (2) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
2022, c.16, s.7; 2023, c.2, s.155
Disclosure of information to shareholders or directors
2022, c.16, s.7
99.5(1)Shareholders of a corporation or directors of a corporation may, on sending to the corporation an affidavit referred to in subsection (2), require the corporation or its agent to provide, within 10 days after the receipt of the affidavit, a list made up to a date not more than 10 days before the date of receipt of the affidavit setting out
(a) the name and last known address of each individual with significant control over the corporation, and
(b) a description of how each individual is an individual with significant control over the corporation, including a description of their interests and rights in respect of shares of the corporation.
99.5(2)The affidavit under subsection (1) shall contain
(a) the name and address of the applicant,
(b) the name and address for service of the body corporate, if the applicant is a body corporate, and
(c) a statement that any information obtained under subsection (1) will not be used except as permitted under this Act.
99.5(3)A list obtained under this section shall not be used by any person except in connection with
(a) an effort to influence the voting of shareholders of the corporation,
(b) an offer to acquire shares of the corporation, or
(c) any other matter relating to the affairs of the corporation.
99.5(4)A person that violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
99.5(5)A person that violates or fails to comply with subsection (3) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category G offence.
2022, c.16, s.7; 2023, c.2, s.73; 2023, c.2, s.155
Disclosure for tax purposes
2022, c.16, s.7
99.6(1)On the request of an employee of the Civil Service as defined in the Civil Service Act or a federal public service employee who is responsible for administering or enforcing a law of the Province or Canada that provides for the imposition or collection of a tax, royalty or duty, a corporation shall disclose information in its register for the purpose of
(a) administering or enforcing a law of the Province or Canada that provides for the imposition or collection of a tax, royalty or duty, or
(b) providing information contained in the register to officials of a jurisdiction outside Canada to assist in the administration or enforcement of a law of that jurisdiction that provides for the imposition or collection of a tax, royalty or duty if the assistance is authorized under an arrangement, written agreement, treaty or law of the Province or Canada.
99.6(2)A person that violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
2022, c.16, s.7; 2023, c.2, s.155
Disclosure for regulatory purposes
2022, c.16, s.7
99.7(1)On the request of a regulatory body, a corporation shall disclose information in its register for the purpose of
(a) administering or enforcing a law for which the regulatory body is responsible,
(b) assisting another agency in Canada in the administration or enforcement of a law that is similar to a law for which the regulatory body is responsible, or
(c) providing information contained in the register to an agency outside Canada to assist the agency in the administration or enforcement of a law that is similar to a law for which the regulatory body is responsible if the assistance is authorized under an arrangement, written agreement, treaty or law of the Province or Canada.
99.7(2)A person that violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
2022, c.16, s.7; 2023, c.2, s.155
Disclosure for law enforcement purposes
2022, c.16, s.7
99.8(1)On the request of a member of a police force, a corporation shall disclose information in its register for the purpose of
(a) conducting an investigation into an offence under a law of the Province or Canada, or
(b) providing information contained in the register to a law enforcement agency in a jurisdiction other than the Province to assist that agency with a law enforcement proceeding if the assistance is authorized under an arrangement, written agreement, treaty or law of the Province or Canada.
99.8(2)A person that violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
2022, c.16, s.7; 2023, c.2, s.155
Non-application
2022, c.16, s.7
99.9Sections 99.1 to 99.8 do not apply to a corporation that is a reporting issuer as defined in the Securities Act.
2022, c.16, s.7; 2023, c.2, s.155
X
FINANCIAL REPORTING
Financial statements
100(1)The directors of a corporation shall place before the shareholders at every annual meeting
(a) comparative financial statements relating separately to
(i) the period that began on the date the corporation came into existence and ended not more than six months before the annual meeting or, if the corporation has completed a financial year, the period that began immediately after the end of the last completed financial year and ended not more than six months before the annual meeting, and
(ii) the immediately preceding financial year;
(b) the report of the auditor, if any has been appointed; and
(c) any further information respecting the financial position of the corporation and the results of its operations required by the articles, the by-laws or any unanimous shareholder agreement.
100(2)Notwithstanding paragraph (1)(a), the financial statements referred to in subparagraph (1)(a)(ii) may be omitted if the reason for the omission is set out in the financial statements, or in a note thereto, to be placed before the shareholders at an annual meeting.
100(3)The financial statements described in subsection (1) shall be prepared in accordance with generally accepted accounting principles.
2023, c.2, s.155
Exemption
2023, c.2, s.74
100.1(1)Despite any provisions under this Part, directors are exempted from the requirements to place financial statements described in subsection 100(1) before the shareholders at an annual meeting for a specific year
(a) if all of the shareholders of the corporation, whether or not their shares carry the right to vote, resolve by a resolution passed unanimously to exempt the directors from the requirements, or
(b) if an order of the Court exempts the directors from some or all of the requirements, to the extent and terms the Court considers appropriate.
100.1(2)An exemption referred to in subsection (1) may be given before, on or after the date on which financial statements are required to be placed before the shareholders and is effective for those financial statements only.
2023, c.2, s.74
Copies and examination of financial statements
101(1)A corporation shall keep at its registered office a copy of the financial statements of each of its subsidiary bodies corporate and of each body corporate the accounts of which are consolidated in the financial statements of the corporation.
101(2)Shareholders of a corporation and their personal representatives may upon request therefor examine the statements referred to in subsection (1) during the usual business hours of the corporation and may make extracts therefrom free of charge.
101(3)A corporation may, within fifteen days of a request to examine under subsection (2), apply to the Court for an order barring the right of any person to so examine, and the Court may, if it is satisfied that such examination would be detrimental to the corporation or a subsidiary body corporate, bar such right and make any further order it thinks fit.
2023, c.2, s.75; 2023, c.2, s.155
Approval by directors
102(1)The directors of a corporation shall approve the financial statements referred to in section 100 and the approval shall be evidenced by the signature of one or more directors.
102(2)A corporation shall not issue, publish or circulate copies of the financial statements referred to in section 100 unless the financial statements are
(a) approved and signed in accordance with subsection (1), and
(b) accompanied by a report, if available, of the auditor of the corporation, if any auditor has been appointed.
102(3)A corporation that violates or fails to comply with subsection (2) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
2008, c.11, s.4; 2023, c.2, s.155
Copy of financial statements to shareholders
103(1)A corporation shall, not less than ten days or such shorter period as may be consented to by a shareholder or such period as may be provided in the articles or in a unanimous shareholder agreement before each annual meeting of shareholders or before the signing of a resolution under section 95 in lieu of the annual meeting, send a copy of the documents referred to in section 100 to each shareholder, except to a shareholder who has informed the corporation in writing that he does not want a copy of these documents.
103(1.1)Despite subsection (1), the requirement in that subsection shall be satisfied when the documents are posted on a website that can be accessed by the shareholder without a fee payment and a notice informing the shareholder is sent to the shareholder that the documents have been posted and explaining how to access them.
103(1.2)A corporation may send the notice informing the shareholder referred to subsection (1.1) to the shareholder by electronic communication if
(a) the shareholder has consented to being sent that notice by electronic communication,
(b) the articles provide for the sending of that notice by electronic communication, or
(c) the corporation is a reporting issuer as defined under the Securities Act.
103(2)Repealed: 2008, c.11, s.4
1984, c.17, s.7; 2008, c.11, s.4; 2023, c.2, s.76; 2023, c.2, s.155
Auditor — independent of the corporation
2023, c.2, s.155
104(1)Subject to subsection (5), a person is disqualified from being an auditor of a corporation if he is not independent of the corporation, any of its affiliates, or the directors or officers of any such corporation or its affiliates.
104(2)For the purposes of this section,
(a) independence is a question of fact; and
(b) a person shall be deemed not to be independent if he or his business partner
(i) is a business partner, a director, an officer or an employee of the corporation or any of its affiliates, or a business partner of any director, officer or employee of any such corporation or any of its affiliates,
(ii) beneficially owns or controls, directly or indirectly, a material interest in the securities or security interests of the corporation or any of its affiliates, or
(iii) has been a receiver, receiver-manager, liquidator or trustee in bankruptcy of the corporation or any of its affiliates within two years after their proposed appointment as auditor of the corporation.
104(2.1)For the purposes of paragraph (2)(b), a person’s business partner includes a shareholder of that person.
104(3)An auditor who becomes disqualified under this section shall, subject to subsection (5), resign forthwith after becoming aware of his disqualification.
104(4)An interested person may apply to the Court for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant.
104(5)An interested person may apply to the Court for an order exempting an auditor from disqualification under this section and the Court may, if it is satisfied that an exemption would not unfairly prejudice the shareholders, make an exemption order on such terms as it thinks fit, which order may have retrospective effect.
2023, c.2, s.77; 2023, c.2, s.155
Appointment, term of office and remuneration of auditor
105(1)Shareholders of a corporation may by ordinary resolution at the first meeting of shareholders and at each succeeding annual meeting appoint an auditor to hold office until the close of the next annual meeting.
105(2)An auditor appointed under section 62 is eligible for appointment under subsection (1).
105(3)A resolution under subsection (1) is valid only until the next succeeding annual meeting of shareholders.
105(4)The remuneration of an auditor may be fixed by ordinary resolution of the shareholders or, if not so fixed, may be fixed by the directors.
105(5)If an auditor is not appointed at a meeting, then the incumbent auditor continues in office until his successor is appointed unless a resolution is passed not to appoint an auditor for the ensuing year.
2023, c.2, s.155
Cessation of office and resignation of auditor
106(1)An auditor of a corporation ceases to hold office when
(a) he dies or resigns; or
(b) he is removed pursuant to section 107.
106(2)A resignation of an auditor becomes effective at the time a written resignation is sent to the corporation, or at the time specified in the resignation, whichever is later.
2023, c.2, s.155
Removal and replacement of auditor
107(1)The shareholders of a corporation may by ordinary resolution at a special meeting remove from office an auditor appointed by resolution under section 105.
107(2)A vacancy created by the removal of an auditor may be filled at the meeting of the shareholders at which the auditor is removed or, if not so filled, may be filled in accordance with section 108.
2023, c.2, s.78
Filling vacancy in office of auditor
108(1)Subject to subsection (3), the directors shall forthwith fill a vacancy in the office of auditor.
108(2)If there is not a quorum of directors, the directors then in office shall, within twenty-one days after a vacancy in the office of auditor occurs, call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors, the meeting may be called by any shareholder.
108(3)The articles of a corporation may provide that a vacancy in the office of auditor shall only be filled by vote of the shareholders.
108(4)An auditor appointed to fill a vacancy holds office for the unexpired term of his predecessor.
2000, c.9, s.11; 2023, c.2, s.155
Attendance of auditor at annual meeting and written statement of auditor
109(1)The auditor of a corporation shall receive notice of the annual meeting of shareholders and is entitled to attend thereat.
109(2)If a director or shareholder of a corporation, whether or not the shareholder is entitled to vote at the meeting, gives written notice not less than ten days before a meeting of shareholders to the auditor or a former auditor of the corporation, the auditor or former auditor shall attend the meeting at the expense of the corporation and answer questions relating to his duties as auditor.
109(3)A director or shareholder who sends a notice referred to in subsection (2) shall send concurrently a copy of the notice to the registered office of the corporation.
109(4)Repealed: 2008, c.11, s.4
109(5)An auditor may submit to the corporation a written statement giving the reasons for their resignation or the reasons why they oppose any proposed action or resolution if the auditor
(a) resigns,
(b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing them from office,
(c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because their term of office has expired or is about to expire, or
(d) receives a notice or otherwise learns of a meeting of shareholders at which no resolution is being proposed to appoint an auditor for the ensuing year.
109(5.1)The corporation is required to send a notice to the auditor at least 10 days in advance of a meeting of shareholders when a shareholder meeting, special meeting or otherwise, is called
(a) for the purpose of removing the auditor from office,
(b) for which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because the auditor’s term of office has expired or is about to expire, or
(c) for which no resolution is being proposed to appoint an auditor for the ensuing year.
109(6)The corporation shall forthwith send a copy of the statement referred to in subsection (5) to every shareholder entitled to receive notice of any meeting referred to in subsection (1).
109(7)No person shall accept appointment or consent to be appointed as auditor of a corporation if he is replacing an auditor who has resigned, been removed or whose term of office has expired or is about to expire until he has requested and received from that auditor a written statement of the circumstances and the reasons why, in that auditor’s opinion, he is to be replaced.
109(8)Notwithstanding subsection (7), a person otherwise qualified may accept appointment or consent to be appointed as auditor of a corporation if, within fifteen days after making the request referred to in that subsection, he does not receive a reply.
109(9)Unless subsection (8) applies, an appointment as auditor of a corporation of a person who has not complied with subsection (7) is void.
2000, c.9, s.12; 2008, c.11, s.4; 2023, c.2, s.79; 2023, c.2, s.155
Examination and report by auditor
110(1)An auditor of a corporation shall make the examination that is in his opinion necessary to enable him to report on the financial statements required by this Act to be placed before the shareholders, except such financial statements or part thereof that relate to the period referred to in subparagraph 100(1)(a)(ii).
110(2)Notwithstanding section 111, an auditor of a corporation may reasonably rely upon the report of an auditor of a body corporate or an unincorporated business the accounts of which are included in whole or in part in the financial statements of the corporation.
110(3)For the purpose of subsection (2), reasonableness is a question of fact.
110(4)Subsection (2) applies whether or not the financial statements of the holding corporation reported upon by the auditor are in consolidated form.
1991, c.27, s.5; 2023, c.2, s.80; 2023, c.2, s.155
Information furnished at demand of auditor
111(1)Upon the demand of an auditor of a corporation, the present or former directors, officers, employees or agents of the corporation and the former auditors of the corporation shall furnish such
(a) information and explanations, and
(b) access to records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries,
as are, in the opinion of the auditor, necessary to enable him to make the examination and report required under section 110 and as the directors, officers, employees, agents or former auditors are reasonably able to furnish.
111(2)Upon the demand of an auditor of a corporation, the directors of a corporation shall obtain from and furnish to the auditor such information and explanations from the present or former directors, officers, employees or agents of any subsidiary of the corporation as are, in the opinion of the auditor, necessary to enable him to make the examination and report required under section 110 and as the directors, officers, employees or agents are reasonably able to furnish.
111(3)A person who in good faith makes an oral or written communication under subsection (1) or (2) is not liable in any civil proceeding arising from having made the communication.
2023, c.2, s.81; 2023, c.2, s.155
Errors in financial statements
2023, c.2, s.82
111.1(1) A director or an officer of a corporation shall without delay notify the auditor of any error or misstatement of which the director or officer becomes aware in a financial statement that the auditor or a former auditor has reported on.
111.1(2)An auditor or former auditor of a corporation who is notified or becomes aware of an error or misstatement in a financial statement on which they have reported, if in their opinion the error or misstatement is material, shall inform each director accordingly.
111.1(3)When under subsection (2) the auditor or former auditor informs the directors of an error or misstatement in a financial statement, the directors shall
(a) prepare and issue revised financial statements, or
(b) otherwise inform the shareholders.
2023, c.2, s.82
Qualified privilege
112Any oral or written statement or report made under this Act by the auditor or former auditor of a corporation has qualified privilege.
2023, c.2, s.155
XI
FUNDAMENTAL CHANGES
Amendment of articles
113(1)Subject to sections 115 and 116, a corporation may by special resolution from time to time amend its articles to add, change or remove any provision that is permitted by this Act to be, or that is, set out in its articles, including, without limiting the generality of the foregoing, to
(a) change its name;
(b) Repealed: 1993, c.52, s.5
(c) add, change or remove any restriction upon the business or businesses that the corporation may carry on;
(d) add, change or remove any maximum number of shares that the corporation is authorized to issue or any maximum consideration for which any shares of the corporation are authorized to be issued;
(e) create new classes of shares;
(f) Repealed: 1983, c.15, s.18
(g) change the designation of all or any of its shares, and add, change or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any of its shares, whether issued or unissued;
(h) change the kind of shares of any class or series whether issued or unissued to another kind of shares of any class or series;
(i) change the shares of any class or series, whether issued or unissued, into a different number of shares of the same class or series or into the same or a different number of shares of other classes or series;
(j) divide a class of shares, whether issued or unissued, into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof;
(k) authorize the directors to divide any class of unissued shares into series and fix the number of shares in each series and the rights, privileges, restrictions and conditions thereof;
(l) authorize the directors to change the rights, privileges, restrictions and conditions attached to unissued shares of any series;
(m) revoke, diminish or enlarge any authority conferred under paragraphs (k) and (l);
(n) subject to section 70, increase or decrease the number, or minimum or maximum number, of directors; and
(o) add, change or remove restrictions on the issue, transfer or ownership of shares of any class or series.
113(2)The directors of a corporation may, if authorized by the shareholders in a special resolution to that effect, revoke a special resolution authorizing an amendment under this section without further approval of the shareholders at any time prior to the issuance by the Director of a certificate of amendment of articles in respect of such amendment.
113(3)Notwithstanding subsection (1), where a corporation has a designated number name, the directors may amend its articles to change that name to a name that is not a number name.
1983, c.15, s.18; 1993, c.52, s.5; 2023, c.2, s.83; 2023, c.2, s.155; 2023, c.2, s.156
Proposal to amend articles
114(1)A director or any shareholder who is entitled to vote at an annual meeting of shareholders may, in accordance with section 89, make a proposal to amend the articles.
114(2)Notice of a meeting of shareholders at which a proposal to amend the articles is to be considered shall set out the proposed amendment and, where applicable, shall state that a dissenting shareholder may be entitled to be paid the fair value of his shares in accordance with section 131, but failure to make that statement does not invalidate an amendment.
1984, c.17, s.8; 2023, c.2, s.84
Vote by class or by series
115(1)The holders of shares of a class or, subject to subsection (2), of a series are, unless the articles otherwise provide in the case of an amendment referred to in paragraph (a), (b) or (e), entitled to vote separately as a class or series upon a proposal to amend the articles to
(a) increase or decrease any maximum number of authorized shares of such class or series or increase any maximum number of authorized shares of a class or series, having rights or privileges equal or superior to the shares of such class or series;
(b) effect an exchange, reclassification or cancellation of all or part of the shares of such class or series;
(c) add, change or remove the rights, privileges, restrictions or conditions attached to the shares of such class or series and, without limiting the generality of the foregoing,
(i) remove or change prejudicially rights to accrued dividends or rights to cumulative dividends,
(ii) add, remove or change prejudicially redemption rights,
(iii) reduce or remove a dividend preference or a liquidation preference, or
(iv) add, remove or change prejudicially conversion privileges, options, voting rights, or rights to acquire securities of a corporation, or sinking fund provisions;
(d) increase the rights or privileges of any class or series of shares having rights or privileges equal or superior to the shares of such class or series;
(e) create a new class or series of shares equal or superior to the shares of such class or series;
(f) make any class or series of shares having rights or privileges inferior to the shares of such class or series equal or superior to the shares of such class or series;
(g) effect an exchange or create a right of exchange of the shares of another class or series into the shares of such class or series; or
(h) add, change or remove restrictions in the transfer or ownership of such class or series.
115(2)The holders of a series of shares of a class are entitled to vote separately as a series under subsection (1) only if such series is affected by an amendment in a manner different from other shares of the same class.
115(3)Subsection (1) applies whether or not shares of a class or series otherwise carry the right to vote.
115(4)A proposed amendment to the articles referred to in subsection (1) is adopted when the holders of the shares of each class or series entitled to vote separately thereon as a class or series have approved the amendment by special resolution.
1983, c.15, s.19; 2023, c.2, s.85
Articles of amendment
116(1)Subject to any revocation under subsection 113(2), after an amendment has been adopted under section 113 or 115, articles of amendment in the form provided by the Director shall be sent to the Director within three months after the confirmation.
116(2)If an amendment effects or requires a reduction of stated capital, subsections 35(3) and (4) apply.
2014, c.50, s.6
Certificate of amendment
117Upon receipt of articles of amendment, the Director shall issue a certificate of amendment.
Effective date of amendment
118(1)An amendment becomes effective on the date shown in the certificate of amendment and the articles are amended accordingly on that date.
118(2)No amendment to the articles affects an existing cause of action or claim or liability to prosecution in favour of or against the corporation or any of its directors or officers, or any civil, criminal or administrative action or proceeding to which a corporation or any of its directors or officers is a party.
2023, c.2, s.86; 2023, c.2, s.155
Restatement of articles
119(1)The directors may at any time, and shall when reasonably directed by the Director, restate the articles of incorporation.
119(2)Restated articles of incorporation shall be sent to the Director in the form provided by the Director.
119(3)Upon receipt of restated articles of incorporation, the Director shall issue a restated certificate of incorporation.
119(4)Restated articles of incorporation are effective on the date shown in the restated certificate of incorporation and supersede the original articles of incorporation and all amendments to them.
2014, c.50, s.7; 2023, c.2, s.87
Right to amalgamate
120Two or more corporations, including holding or subsidiary corporations, may amalgamate and continue as one corporation.
2023, c.2, s.88; 2023, c.2, s.155
Amalgamation agreement
121(1)Where corporations propose to amalgamate, each such corporation shall enter into an agreement setting out the terms and means of effecting the amalgamation and, in particular, setting out
(a) the provisions that are required to be included in articles of incorporation under section 4;
(b) subject to subsection (2), the basis upon which and manner in which the holders of the issued shares of each amalgamating corporation are to receive
(i) securities of the amalgamated corporation,
(ii) money, and
(iii) securities of any body corporate other than the amalgamated corporation,
in the amalgamation;
(c) the manner of payment of money instead of the issue of fractional shares of the amalgamated corporation or of any other body corporate the securities of which are to be received in the amalgamation;
(d) whether the by-laws of the amalgamated corporation are to be those of one of the amalgamating corporations and if not, a copy of the proposed by-laws; and
(e) such other details as may be necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated corporation.
121(2)Where shares of one of the amalgamating corporations are held by or on behalf of another of the amalgamating corporations, the amalgamation agreement shall provide for the cancellation of such shares upon the amalgamation becoming effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of such shares into shares of the amalgamated corporation.
2023, c.2, s.89; 2023, c.2, s.155
Approval of amalgamation agreement by shareholders
122(1)The directors of each amalgamating corporation shall submit the amalgamation agreement for approval at a meeting of the holders of shares of the amalgamating corporation of which they are directors and, subject to subsection (4), of the holders of each class or series of such shares.
122(2)A notice of a meeting of shareholders complying with section 87 shall be sent in accordance with that section to each shareholder of each amalgamating corporation, and shall
(a) include or be accompanied by a copy or summary of the amalgamation agreement; and
(b) state that a dissenting shareholder may be entitled to be paid the fair value of his shares in accordance with section 131, but failure to make that statement does not invalidate an amalgamation.
122(3)Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation whether or not it otherwise carries the right to vote.
122(4)The holders of shares of a class or series of shares of an amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the articles, would entitle those holders to vote as a class or series under section 115.
122(5)Subject to subsection (4), an amalgamation agreement is adopted when the shareholders of each amalgamating corporation have approved of the amalgamation by special resolution.
122(6)An amalgamation agreement may provide that at any time before the issue of a certificate of amalgamation the agreement may be terminated by the directors of an amalgamating corporation, notwithstanding approval of the agreement by the shareholders of all or any of the amalgamating corporations.
2000, c.9, s.13; 2023, c.2, s.155
Short form — amalgamation
123(1)A holding corporation and one or more of its subsidiary corporations may amalgamate and continue as one corporation without complying with sections 121 and 122,
(a) if the amalgamation is approved by a resolution of the directors of each amalgamating corporation;
(a.1) if all the issued shares of each amalgamating subsidiary corporation are held by one or more of the other amalgamating corporations, and
(b) if the resolutions provide that,
(i) the shares of each amalgamating subsidiary corporation shall be cancelled without any repayment of capital in respect thereof,
(ii) except as permitted by subsection (1.1) or as prescribed, the articles of amalgamation shall be the same as the articles of incorporation of the amalgamating holding corporation, and
(iii) no securities shall be issued and no assets shall be distributed by the amalgamated corporation in connection with the amalgamation.
123(1.1)The articles of amalgamation may provide that the corporate name set out in the articles of amalgamation is not the same as that set out in the articles of the amalgamating holding corporation.
123(2)Two or more wholly owned subsidiary corporations of the same holding body corporate may amalgamate and continue as one corporation without complying with sections 121 and 122,
(a) if the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and
(b) if the resolutions provide that,
(i) the shares of all but one of the amalgamating subsidiary corporations shall be cancelled without any repayment of capital in respect thereof,
(ii) except as permitted by subsection (2.1) or as prescribed, the articles of amalgamation shall be the same as the articles of incorporation of the amalgamating subsidiary corporation whose shares are not cancelled, and
(iii) the stated capital of the amalgamating subsidiary corporations whose shares are cancelled shall be added to the stated capital of the amalgamating subsidiary corporation whose shares are not cancelled.
123(2.1)Articles of amalgamation may differ from the articles of the amalgamating subsidiary corporation whose shares are not cancelled by providing for
(a) a different name, and
(b) a different number, or minimum or maximum number, of directors.
2023, c.2, s.90; 2023, c.2, s.155
Articles and certificate of amalgamation
124(1)Subject to subsection 122(6), after an amalgamation has been adopted under section 122 or approved under section 123, articles of amalgamation shall be sent to the Director in the form provided by the Director together with the documents required by sections 17 and 64.
124(2)The articles of amalgamation shall have attached thereto a statement of a director or an officer of each amalgamating corporation that
(a) there are reasonable grounds for believing that,
(i) each amalgamating corporation is and the amalgamated corporation will be able to pay its liabilities as they become due, and
(ii) the realizable value of the amalgamated corporation’s assets will not be less than the aggregate of its liabilities and stated capital of all classes; and
(b) there are reasonable grounds for believing that
(i) no creditor will be prejudiced by the amalgamation, or
(ii) adequate notice has been given to all known creditors of the amalgamating corporations and no creditor objects except on grounds that are frivolous or vexatious.
124(3)For the purposes of subsection (2), adequate notice is given if
(a) a notice in writing is sent to each known creditor having a claim against the corporation that exceeds one thousand dollars at the last address of the creditor known to the corporation;
(b) a notice of the proposed amalgamation is published once in a newspaper published or distributed in the place where each amalgamating corporation has its registered office;
(c) a notice is published in The Royal Gazette; and
(d) each notice states that the corporation intends to amalgamate with one or more specified corporations in accordance with this Act unless a creditor of the corporation objects to the amalgamation within thirty days from the date of the notice.
124(4)Upon receipt of articles of amalgamation and the statement, the Director shall issue a certificate of amalgamation.
2004, c.6, s.1; 2014, c.50, s.8; 2023, c.2, s.155
Effect of issue of certificate of amalgamation
125Upon the date set forth in the certificate of amalgamation,
(a) the amalgamation becomes effective and the amalgamating corporations are amalgamated and continue as one corporation under the terms and conditions prescribed in the amalgamation agreement;
(b) the amalgamated corporation possesses all the property, rights, privileges and franchises and is subject to all liabilities, including civil, criminal and administrative, all contracts, disabilities and debts of each of the amalgamating corporations;
(c) a conviction against, or ruling, order or judgment in favour of or against an amalgamating corporation may be enforced by or against the amalgamated corporation;
(d) the articles of amalgamation shall be deemed to be the articles of incorporation of the amalgamated corporation and, except for the purposes of subsection 7(1), the certificate of amalgamation shall be deemed to be the certificate of incorporation of the amalgamated corporation; and
(e) the amalgamated corporation shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against an amalgamating corporation before the amalgamation has become effective.
2000, c.9, s.14; 2023, c.2, s.91; 2023, c.2, s.155
Articles and certificate of continuance
126(1)A body corporate
(a) incorporated under the laws of any jurisdiction other than New Brunswick may, if so authorized by the laws of the jurisdiction in which it is incorporated, or
(b) incorporated or continued under the laws of the Province may,
apply to the Director for a certificate of continuance.
126(2)Articles of continuance shall be sent to the Director in the form provided by the Director together with the documents prescribed by sections 17 and 64.
126(3)The articles of continuance shall make any amendments to the original or restated articles of incorporation, articles of amalgamation, letters patent or supplementary letters patent, special Act or any other instrument by which the body corporate was incorporated, and any amendments thereto, necessary to make the articles of continuance conform to the laws of New Brunswick, and may make such other amendments as would be permitted under this Act if the body corporate were incorporated under the laws of New Brunswick, if the same shareholder approval has been obtained for such other amendments as would have been required under this Part if the body corporate were incorporated under the laws of New Brunswick.
126(4)Upon receipt of articles of continuance and any other prescribed documents, the Director shall issue a certificate of continuance.
126(5)On the date shown in the certificate of continuance,
(a) the body corporate becomes a corporation to which this Act applies as if it has been incorporated under this Act;
(b) the articles of continuance shall be deemed to be the articles of incorporation of the continued corporation; and
(c) the certificate of continuance shall be deemed to be the certificate of incorporation of the continued corporation.
126(6)The Director shall send a copy of the certificate of continuance to the appropriate official or public body in the jurisdiction in which continuation under the Act was authorized, but this does not apply with respect to a body corporate continued in accordance with section 192.
126(7)When a body corporate is continued as a corporation under this Act,
(a) the corporation possesses all the property, rights, privileges and franchises and is subject to all the liabilities, including civil, criminal and administrative, and all contracts, disabilities and debts of the body corporate;
(b) a conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the corporation; and
(c) the corporation shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against the body corporate.
126(8)Subject to subsection (8.1), a share of a body corporate issued before the body corporate was continued under this Act shall be deemed to have been issued in compliance with this Act and with the provisions of the articles of continuance, irrespective of whether the share is fully paid, and of any designation, rights, privileges, restrictions or conditions set out on or referred to in the certificate representing the share, and continuance under this section does not deprive a holder of any right or privilege that he claims under, or relieve him of any liability in respect of, an issued share.
126(8.1)If a corporation continued under this Act had, before it was continued, issued a security certificate in registered form that is convertible to bearer form, the corporation shall not, if a holder of the security certificate exercises the conversion privilege attached to the certificate, issue a security certificate in bearer form.
126(9)For the purposes of subsection (8), “share” includes an instrument referred to in subsection 28(1), a share warrant as defined in the Companies Act or a like instrument.
1983, c.15, s.20; 2000, c.9, s.15; 2008, c.S-5.8, s.106; 2014, c.50, s.9; 2022, c.16, s.8; 2023, c.2, s.92; 2023, c.2, s.155; 2023, c.157
Certificate of discontinuance
127(1)Subject to subsection (8), a corporation may, if it is authorized by the shareholders in accordance with this section, and it establishes to the satisfaction of the Director that its proposed continuance in another jurisdiction will not adversely affect creditors or shareholders of the corporation, apply to the appropriate official or public body of another jurisdiction requesting that the corporation be continued as if it had been incorporated under the laws of that other jurisdiction.
127(1.1)Despite subsection (1), the requirement under subsection (1) shall be satisfied when the proposed continuance is in another province or territory of Canada and the application is not prohibited by subsection (8).
127(2)A notice of a meeting of shareholders complying with section 87 shall be sent in accordance with that section to each shareholder and shall state that a dissenting shareholder may be entitled to be paid the fair value of his shares in accordance with section 131, but failure to make that statement does not invalidate a discontinuance under this Act.
127(3)Each share of the corporation carries the right to vote in respect of a continuance whether or not it otherwise carries the right to vote.
127(4)An application for continuance under subsection (1) becomes authorized when the shareholders voting thereon have approved of the continuance by a special resolution.
127(5)The directors of a corporation may, if authorized by the shareholders at the time of approving an application for continuance under this section, abandon the application without further approval of the shareholders.
127(5.1)A corporation continued under the laws of another jurisdiction shall without delay send a notice to the Director that it has been continued under the laws of that jurisdiction.
127(6)Subject to subsection (1), upon receipt of notice satisfactory to him that the corporation has been continued under the laws of another jurisdiction, the Director shall file the notice and issue a certificate of discontinuance.
127(7)This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance, which shall be dated the date upon which the corporation is continued under the laws of another jurisdiction.
127(8)A corporation shall not apply under subsection (1) to be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that
(a) the property of the corporation continues to be the property of the body corporate;
(b) the body corporate continues to be liable for the obligations of the corporation;
(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 corporation may be continued to be prosecuted by or against the body corporate; and
(e) a conviction against the corporation may be enforced against the body corporate or a ruling, order or judgment in favour of or against the corporation may be enforced by or against the body corporate.
2000, c.9, s.16; 2023, c.2, s.93; 2023, c.2, s.155
Arrangement — power of the Court and role of the Director
128(1)In this section “arrangement”, with respect to a corporation, includes
(a) the addition to, change or removal from the articles of the corporation of any provision that is permitted by this Act to be, or that is, set out in the articles;
(b) an amalgamation of the corporation with another corporation;
(c) an amalgamation of a body corporate with a corporation that results in an amalgamated corporation subject to this Act;
(d) a transfer of all or substantially all the property of the corporation to another body corporate in exchange for securities, money or other property of the body corporate;
(e) an exchange of securities of the corporation held by security holders for other securities, money or other property of the corporation or securities, money or other property of another body corporate that is not a takeover bid under section 133;
(f) a liquidation and dissolution of the corporation;
(g) a compromise between a corporation and its creditors or any class of its creditors or between a corporation and the holders of its shares or debt obligations or any class of those holders;
(g.1) any other reorganization or scheme involving the business or affairs of the corporation, any of the holders of its securities or any options or rights to acquire any of its securities that is, at law, an arrangement; or
(h) any combination of the foregoing.
128(1.1)For purposes of paragraphs (1)(d) and (e), the securities, money or other property for which the securities referred to in those paragraphs may be exchanged shall be financial assets as defined in the Securities Transfer Act.
128(2)An application may be made to the Court by a corporation or a security holder or creditor of a corporation for an order approving an arrangement in respect of the corporation.
128(3)Repealed: 2023, c.2, s.94
128(4)Despite the fact that an arrangement can be effected under another provision of this Act, an application may be made under this section for an arrangement, and the Court may make any interim or final order it thinks fit, including
(a) an order determining the notice to be given to any interested person or dispensing with notice to any person;
(b) an order appointing counsel, at the expense of the corporation, to represent the interests of the shareholders;
(c) an order requiring a corporation to call, hold and conduct a meeting of all or any particular group of holders of any securities or options or rights to acquire securities of the corporation or creditors in such manner as the Court directs;
(d) an order permitting a shareholder to dissent under section 131 if the arrangement is adopted;
(e) an order that the arrangement or proposed arrangement shall be deemed not to have been adopted unless it has been approved by such majority, which majority may be
(i) in the case of a vote of shareholders or a class of shareholders, a majority of at least two-thirds of the votes cast by the shareholders voting on the resolution,
(ii) in the case of a vote of creditors or a class of creditors, a majority in number representing at least two-thirds of the amount of their claims,
(iii) in the case of a vote of the holders of debt obligations or a class of those holders, a majority in number representing at least two-thirds of their claims, and
(iv) in the case of a vote of holders of options or rights to acquire securities, the majority that would be required under paragraphs (i) and (iii) if those holders had acquired ownership of the securities; or
(f) an order approving the arrangement as proposed by the corporation or as amended in any manner the Court may direct.
128(5)An applicant for an interim or final order under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel.
2023, c.2, s.94; 2023, c.2, s.155
Articles and certificate of arrangement
129(1)After an order referred to in paragraph 128(4)(f) has been made, articles of arrangement in the form provided by the Director shall be sent to the Director together with the documents required by sections 17 and 64, if applicable.
129(2)Upon receipt of articles of arrangement, the Director shall issue a certificate of arrangement.
129(3)An arrangement becomes effective on the date shown in the certificate of arrangement.
2014, c.50, s.10; 2023, c.2, s.95
Sale, lease or exchange of property of the corporation
2023, c.2, s.155
130(1)A sale, lease or exchange of all or substantially all the property of a corporation other than in the ordinary course of business of the corporation requires the approval of the shareholders in accordance with subsections (3) to (7).
130(1.1) This section does not apply to a sale, lease or exchange of all or substantially all the property of a corporation
(a) that creates only a security interest,
(b) that, if a lease, does not have a term longer than three years or any option or right of renewal that could extend the lease period to more than three years,
(c) to or with a body corporate
(i) that is a wholly owned subsidiary of the corporation,
(ii) that is a holding body corporate of which the corporation is a wholly owned subsidiary, or
(iii) if the body corporate and the corporation are each wholly-owned subsidiaries of the same holding body corporate or are wholly owned by the same person, or
(d) to an individual who holds all the shares of the corporation or of a body corporate that holds all the shares of the corporation.
130(2)Where a sale, lease or exchange of all or substantially all the property of a corporation is proposed, a meeting of the shareholders shall be called and a notice of a meeting of shareholders complying with section 87 shall be sent in accordance with that section to each shareholder and shall
(a) include or be accompanied by a copy or summary of the agreement of sale, lease or exchange; and
(b) state that a dissenting shareholder may be entitled to be paid the fair value of his shares in accordance with section 131, but failure to make that statement does not invalidate a sale, lease or exchange referred to in subsection (1).
130(3)At the meeting referred to in subsection (2), the shareholders may approve the sale, lease or exchange and may fix or authorize the directors to fix any of the terms and conditions thereof.
130(4)Each share of the corporation carries the right to vote in respect of a sale, lease or exchange referred to in subsection (1) whether or not it otherwise carries the right to vote.
130(5)If sale, lease or exchange by a corporation referred to in subsection (1) would affect a particular class or series of shares of the corporation in a manner different from the shares of another class or series of the corporation entitled to vote on the sale, lease or exchange referred to in subsection (1), the holders of such first mentioned class or series of shares, whether or not they are otherwise entitled to vote, are entitled to vote separately as a class or series in respect to such sale, lease or exchange.
130(6)The approval of the shareholders of a corporation of a sale, lease or exchange referred to in subsection (1) is not effective until the holders of the shares of each class or series of shares of the corporation entitled to vote separately on the sale, lease or exchange have, in each case by special resolution, approved the sale, lease or exchange.
130(7)The directors of a corporation may, if authorized by the shareholders approving a proposed sale, lease or exchange, and subject to the rights of third parties, abandon the sale, lease or exchange without further approval of the shareholders.
2023, c.2, s.96; 2023, c.2, s.155
Right to dissent and related issues
131(1)Subject to sections 132 and 166, a holder of shares of any class of a corporation entitled to vote may dissent if the corporation is subject to an order under paragraph 128(4)(d) that affects the holder or if the corporation resolves to
(a) amend its articles under section 113 to add, change or remove restrictions on the issue, transfer or ownership of shares of a class or series of the shares of the corporation;
(b) amend its articles under section 113 to add, change or remove any restriction upon the business or businesses that the corporation may carry on;
(c) amend its articles under section 113 to provide that meetings of the shareholders may be held outside New Brunswick at one or more specified places;
(c.1) amend its articles under section 113 to remove any cumulative voting rights provided therein;
(d) amalgamate with another corporation, otherwise than under section 123;
(e) be continued under the laws of another jurisdiction under section 127; or
(f) sell, lease or exchange all or substantially all its property under subsection 130(1) and subsection (1.1) does not apply.
131(2)For the purposes of subsection 131(1), a holder of shares of any class or series of shares entitled to vote under section 115 may dissent if the corporation resolves to amend its articles in a manner described in that section.
131(3)In addition to any other right he may have, but subject to subsection (26), a shareholder who complies with this section is entitled, when the action approved by the resolution from which he dissents becomes effective, or an order is made under subsection 128(5), to be paid by the corporation the fair value of the shares held by him in respect of which he dissents, determined as of the close of business on the day before the resolution is adopted or an order is made, but in determining the fair value of the shares any change in value reasonably attributable to the anticipated adoption of the resolution shall be excluded.
131(4)A dissenting shareholder may only claim under this section with respect to all the shares of a class held by him on behalf of any one beneficial owner and registered in the name of the dissenting shareholder.
131(5)A dissenting shareholder shall send to the registered office of the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution, unless the corporation did not give notice to the shareholder of the purpose of the meeting or of his right to dissent.
131(5.1)The execution or exercise of a proxy does not constitute a written objection to the resolution for the purposes of subsection (5).
131(6)The corporation shall, within ten days after the shareholders adopt the resolution, send to each shareholder who has sent the objection referred to in subsection (5) notice that the resolution has been adopted, but such notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn his objection.
131(6.1)A notice under subsection (6) shall set out the rights of the dissenting shareholder and the procedures to be followed to exercise those rights.
131(7)A dissenting shareholder shall, within twenty days after he receives a notice under subsection (6), or, if he does not receive such notice, within twenty days after he learns that the resolution has been adopted, send to the corporation a written notice containing
(a) his name and address;
(b) the number and class of shares in respect of which he dissents; and
(c) a demand for payment of the fair value of such shares.
131(8)Not later than the thirtieth day after the sending of a notice under subsection (7), a dissenting shareholder shall send the certificates, if any, representing the shares in respect of which he dissents to the corporation or its transfer agent.
131(9)A dissenting shareholder who fails to comply with subsection (5), (7) and (8) has no right to make a claim under this section.
131(10)A corporation or its transfer agent shall endorse on any security certificate received under subsection (8) a notice that the holder is a dissenting shareholder under this section and shall return forthwith the security certificates to the dissenting shareholder.
131(11)On sending a notice under subsection (7), a dissenting shareholder ceases to have any rights as a shareholder other than the right to be paid the fair value of his shares as determined under this section except where
(a) the dissenting shareholder withdraws his notice before the corporation makes an offer under subsection (12),
(b) the corporation fails to make an offer in accordance with subsection (12) and the dissenting shareholder withdraws his notice, or
(c) the directors revoke a resolution to amend the articles under subsection 113(2), terminate an amalgamation agreement under subsection 122(6), abandon an application for continuance under subsection 127(5), or abandon a sale, lease or exchange under subsection 130(7),
in which case his rights as the holder of the shares in respect of which he had dissented are reinstated as of the date he sent the notice referred to in subsection (7), and he is entitled, upon presentation and surrender to the corporation or its transfer agent of any certificate representing the shares that have been endorsed in accordance with subsection (10), to be issued a new certificate representing the same number of shares as the certificate so presented, without payment of any fee.
131(11.1)A dissenting shareholder whose rights are reinstated under subsection (11) is entitled, on presentation and surrender to the corporation or its transfer agent of any security certificate that has been endorsed in accordance with subsection (10),
(a) to be issued, without payment of any fee, a new certificate representing the same number, class and series of shares as the certificate surrendered, or
(b) if a resolution is passed by the directors under section 46 with respect to that class and series of shares,
(i) to be issued the same number, class and series of uncertificated shares as represented by the certificate surrendered, and
(ii) to be sent the notice referred to in section 46.
131(11.2)A dissenting shareholder whose rights are reinstated under subsection (11) and who held uncertificated shares at the time of sending a notice to the corporation under subsection (7) is entitled,
(a) to be issued the same number, class and series of uncertificated shares as those held by the dissenting shareholder at the time of sending the notice under subsection (7), and
(b) to be sent the notice referred to in section 46.
131(12)A corporation shall, not later than seven days after the later of the day on which the action approved by the resolution is effective or the day the corporation received the notice referred to in subsection (7), send to each dissenting shareholder who has sent such notice
(a) a written offer to pay for his shares in an amount considered by the directors of the corporation to be the fair value thereof, accompanied by a statement showing how the fair value was determined; or
(b) if subsection (26) applies, a notification that it is unable lawfully to pay dissenting shareholders for their shares.
131(13)Every offer made under subsection (12) for shares of the same class or series shall be on the same terms.
131(14)Subject to subsection (26), a corporation shall pay for the shares of a dissenting shareholder within ten days after an offer made under subsection (12) has been accepted, but any such offer lapses if the corporation does not receive an acceptance thereof within thirty days after the offer has been made.
131(15)Where a corporation fails to make an offer under subsection (12) or if a dissenting shareholder fails to accept an offer, the corporation may, within fifty days after the action approved by the resolution is effective or within such further period as the Court may allow, apply to the Court to fix a fair value for the shares of any dissenting shareholder.
131(16)If a corporation fails to apply to the Court under subsection (15), a dissenting shareholder may apply to the Court for the same purpose within a further period of twenty days or within such further period as the Court may allow.
131(17)If a corporation fails to comply with subsection (12), then the costs of a shareholder application under subsection (16) are to be borne by the corporation unless the Court otherwise orders.
131(18)Before making application to the Court under subsection (15) or not later than seven days after receiving notice of an application to the Court under subsection (16), as the case may be, a corporation shall give notice to each dissenting shareholder who, at the date upon which the notice is given,
(a) has sent to the corporation the notice referred to in subsection (7), and
(b) has not accepted an offer made by the corporation under subsection (12), if such offer was made,
of the date, place and consequences of the application and of his right to appear and be heard in person or by counsel, and a similar notice shall be given to each dissenting shareholder who, after the date of such first mentioned notice and before termination of the proceedings commenced by the application, satisfies the conditions set out in paragraphs (a) and (b), within three days after he satisfies such conditions.
131(19)All dissenting shareholders who satisfy the conditions set out in paragraphs (18)(a) and (b) shall be deemed to be joined as parties to an application under subsection (15) or (16) on the later of the date upon which the application is brought and the date upon which they satisfy the conditions, and shall be bound by the decision rendered by the Court in the proceedings commenced by the application.
131(20)Upon an application to the Court under subsection (15) or (16), the Court may determine whether any other person is a dissenting shareholder who should be joined as a party, and the Court shall then fix a fair value for the shares of all dissenting shareholders.
131(21)The Court may in its discretion appoint one or more appraisers to assist the Court to fix a fair value for the shares of the dissenting shareholders.
131(22)The final order of the Court in the proceedings commenced by an application under subsection (15) or (16) shall be rendered against the corporation and in favour of each dissenting shareholder who, whether before or after the date of the order, complies with the conditions set out in paragraphs (18)(a) and (b).
131(23)The Court may in its discretion allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective until the date of payment.
131(24)Where subsection (26) applies, the corporation shall, within ten days after the pronouncement of an order under subsection (22), notify each dissenting shareholder that it is unable lawfully to pay dissenting shareholders for their shares.
131(25)Where subsection (26) applies, a dissenting shareholder, by written notice delivered to the registered office of the corporation within thirty days after receiving a notice under subsection (24), may
(a) withdraw his notice of dissent, in which case the corporation shall be deemed to consent to the withdrawal and the shareholder is reinstated to his full rights as a shareholder, or
(b) retain a status as a claimant against the corporation, to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the corporation but in priority to its shareholders.
131(26)A corporation shall not make a payment to a dissenting shareholder under this section if there are reasonable grounds for believing that
(a) the corporation is or would after the payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities.
131(27)On application by a corporation that proposes to take any of the actions referred to in subsection (1) or (2), the Court may, if satisfied that the proposed action is not in all the circumstances one that should give rise to the rights arising under subsection (3), by order declare that those rights will not arise on the taking of the proposed action, and the order may be subject to compliance on the terms and conditions as the Court thinks fit.
131(28)Repealed: 2023, c.2, s.97
1991, c.27, s.5; 2023, c.2, s.97; 2023, c.2, s.155; 2023, c.2, s.157
Reorganization
132(1)In this section, “reorganization” means a court order made under
(a) section 166;
(b) the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada) approving a proposal; or
(c) any other Act that affects the rights among the corporation, its shareholders and creditors.
132(2)If a corporation is subject to a reorganization, its articles may be amended by such order to effect any change that might lawfully be made by an amendment under section 113.
132(3)Where a reorganization is made, the Court may also
(a) authorize the issue of debt obligations of the corporation, whether or not convertible into shares of any class or series or having attached any rights or options to acquire shares of any class or series, and fix the terms of the obligations; and
(b) appoint directors in place of or in addition to all or any of the directors then in office.
132(4)After a reorganization has been made, articles of reorganization shall be sent to the Director in the form provided by the Director together with the documents required by sections 17 and 71, if applicable.
132(5)Upon receipt of articles of reorganization, the Director shall issue a certificate of amendment.
132(6)A reorganization becomes effective on the date shown in the certificate of amendment and the articles are amended accordingly.
132(7)A shareholder is not entitled to dissent under section 131 if an amendment to the articles is effected under this section.
2014, c.50, s.11; 2023, c.2, s.98; 2023, c.2, s.155
XII
TAKE OVER BIDS
Acquisition of shares held by dissenting offerees
133(1)In this section “dissenting offeree” means, where an offer is made for all the shares of a class of shares of a corporation, a holder of a share of that class who does not accept the offer and includes a subsequent holder of that share who acquires it from the first mentioned holder.
133(2)If within one hundred and twenty days after the date of an offer to purchase shares the offer is accepted by the holders of not less than ninety percent of the shares of any class of shares to which the offer relates, other than shares held at the date of the offer by or on behalf of the offeror or an affiliate or associate of the offeror, the offeror is entitled, upon complying with this section, to acquire the shares held by the dissenting offerees.
133(3)An offeror may acquire shares held by a dissenting offeree by sending by registered mail within sixty days after the date of termination of the offer, and in any event within one hundred and eighty days after the date of the offer, an offeror’s notice to each dissenting offeree and to the Director stating that
(a) the offerees holding more than ninety per cent of the shares to which the offer relates accepted the offer;
(b) the offeror is bound to take up and pay for or has taken up and paid for the shares of the offerees who accepted the offer;
(c) a dissenting offeree is required to elect
(i) to transfer his shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the offer, or
(ii) to demand payment of the fair value of his shares in accordance with subsections (9) to (16) by notifying the offeror within twenty days after he receives the offeror’s notice;
(d) a dissenting offeree who does not notify the offeror in accordance with subparagraph (c)(ii) shall be deemed to have elected to transfer his shares to the offeror on the same terms that the offeror acquired the shares from the offerees who accepted the offer; and
(e) a dissenting offeree must send his shares to which the offer relates to the offeree corporation within twenty days after he receives the offeror’s notice.
133(4)Concurrently with sending the offeror’s notice under subsection (3) to a dissenting offeree, the offeror shall send to the offeree corporation a copy of the offeror’s notice, which constitutes a demand under subsection 88(1) of the Securities Transfer Act that the offeree corporation not register a transfer with respect to each share held by a dissenting offeree.
133(5)A dissenting offeree to whom an offeror’s notice is sent under subsection (3) shall, within twenty days after he receives that notice, send his security certificates of the class of shares to which the offer relates to the offeree corporation.
133(6)Within twenty days after the offeror sends an offeror’s notice under subsection (3), the offeror shall pay or transfer to the offeree corporation the amount of money or other consideration that the offeror would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to transfer his shares under subparagraph (3)(c)(i).
133(7)The offeree corporation shall be deemed to hold in trust for the dissenting shareholders the money or other consideration it receives under subsection (6), and the offeree corporation shall deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured under the Canada Deposit Insurance Corporation Act (Canada), and shall place the other consideration in the custody of a bank or other similar body corporate.
133(7.1)A corporation that violates or fails to comply with subsection (7) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
133(8)Within thirty days after the offeror sends an offeror’s notice under subsection (3), the offeree corporation shall
(a) issue to the offeror a security certificate in respect of the shares that were held by dissenting offerees;
(b) give to each dissenting offeree who elects to transfer his shares under subparagraph (3)(c)(i) and who sends his security certificates as required under subsection (5), the money or other consideration to which he is entitled, disregarding fractional shares, which may be paid for in money; and
(c) send to each dissenting shareholder who has not sent his security certificates as required under subsection (5) a notice stating that
(i) his shares have been cancelled,
(ii) the offeree corporation or some designated person holds in trust for him the money or other consideration to which he is entitled as payment for or in exchange for his shares, and
(iii) the offeree corporation will, subject to subsections (9) to (16), send that money or other consideration to him forthwith after receiving his shares.
133(9)If a dissenting offeree has elected to demand payment of the fair value of his shares under subparagraph (3)(c)(ii), the offeror may, within twenty days after it has paid the money or transferred the other consideration under subsection (6), apply to the Court to fix the fair value of the shares of that dissenting offeree.
133(10)If an offeror fails to apply to the Court under subsection (9), a dissenting offeree may apply to the Court for the same purpose within a further period of twenty days.
133(11)A dissenting offeree is not required to give security for costs in an application made under subsection (9) or (10).
133(12)Upon an application under subsection (9) or (10)
(a) all dissenting offerees referred to in subparagraph (3)(c)(ii) whose shares have not been acquired by the offeror shall be joined as parties and are bound by the decision of the Court; and
(b) the offeror shall notify each affected dissenting offeree of the date, place and consequences of the application and of his right to appear and be heard in person or by counsel.
133(13)Upon an application to the Court under subsection (9) or (10) the Court may determine whether any other person is a dissenting offeree who should be joined as a party, and the Court shall then fix a fair value for the shares of all dissenting offerees.
133(14)The Court may in its discretion appoint one or more appraisers to assist the Court to fix a fair value for the shares of a dissenting offeree.
133(15)The final order of the Court shall be made against the offeror in favour of each dissenting offeree and for the amount for his shares as fixed by the Court.
133(16)In connection with proceedings under this section, the Court may make any order it thinks fit and, without limiting the generality of the foregoing, it may
(a) fix the amount of money or other consideration that is deemed to be held in trust under subsection (7);
(b) order that that money or other consideration be held in trust by a person other than the offeree corporation;
(c) allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date he sends or delivers his security certificates under subsection (5) until the date of payment; and
(d) order that any money or other consideration payable to a shareholder who cannot be found be disposed of in accordance with subsection 153(1).
133(17)Where an offeror has not exercised the right conferred by subsection (2), a dissenting shareholder may, within thirty days after the date on which the notice referred to in subsection (3) could be sent, require the offeror to acquire the shares held by the dissenting shareholder and subsections (3) to (16) shall apply mutatis mutandis.
1991, c.27, s.5; 2008, c.11, s.4; 2008, c.S-5.8, s.106; 2023, c.2, s.99; 2023, c.2, s.155; 2023, c.2, s.157
Offer to all shareholders of the same class
Repealed: 2023, c.2, s.100
2023, c.2, s.100
134Repealed: 2023, c.2, s.101
2000, c.9, s.17; 2023, c.2, s.101
XIII
LIQUIDATION AND DISSOLUTION
Bankrupt corporation and stayed action
2023, c.2, s.155
135(1)This Part, other than sections 136 and 139, does not apply to a corporation that is an insolvent person or a bankrupt as those terms are defined in section 2 of the Bankruptcy and Insolvency Act (Canada).
135(2)Any proceedings taken under this Part to dissolve or to liquidate and dissolve a corporation shall be stayed if the corporation is at any time found, in a proceeding under the Bankruptcy and Insolvency Act (Canada), to be an insolvent person as defined in section 2 of that Act.
2023, c.2, s.102
Articles and certificate of revival
136(1)Where a corporation is dissolved, any interested person may apply to the Director to have the corporation revived.
136(2)Where a body corporate has had its charter forfeited under the Companies Act, any interested person may apply to the Director to have the body corporate revived as a corporation under this Act.
136(3)Articles of revival shall be sent to the Director in the form provided by the Director.
136(4)Upon receipt of articles of revival, the Director may issue a certificate of revival.
136(4.1)Where a corporation is dissolved under section 139 or where a body corporate has had its charter forfeited under the Companies Act, the Lieutenant-Governor in Council may, in writing, direct the Director to revive the corporation or body corporate, as the case may be.
136(4.2)Where the Director receives a direction from the Lieutenant-Governor in Council under subsection (4.1), the Director shall issue a certificate of revival.
136(5)Subject to subsection (6), a corporation or body corporate is revived on the date shown on the certificate of revival and thereafter the corporation or body corporate, 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 or had its charter forfeited.
136(6)The Director may
(a) impose any terms upon the issuance of the certificate of revival, or
(b) direct a body corporate to apply for a certificate of continuance under section 126.
1997, c.22, s.1; 2000, c.46, s.1; 2014, c.50, s.12; 2023, c.2, s.103; 2023, c.2, s.155
Articles and certificate of dissolution
137(1)A corporation that has not issued any shares may be dissolved at any time by resolution of all the directors.
137(2)A corporation that has no property and no liabilities may be dissolved by special resolution of the shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote.
137(3)A corporation that has property or liabilities or both may be dissolved by special resolution of the shareholders or, where it has issued more than one class of shares, by special resolutions of the holders of each class whether or not they are otherwise entitled to vote, if
(a) by the special resolution or resolutions the shareholders authorize the directors to cause the corporation to distribute any property and discharge any liabilities; and
(b) the corporation has distributed any property and discharged any liabilities before it sends articles of dissolution to the Director pursuant to subsection (4).
137(4)Articles of dissolution shall be sent to the Director in the form provided by the Director.
137(5)Upon receipt of articles of dissolution, the Director shall issue a certificate of dissolution.
137(6)The corporation ceases to exist on the date shown in the certificate of dissolution.
2014, c.50, s.13; 2023, c.2, s.155
Voluntary liquidation and dissolution
138(1)The directors may propose or a shareholder who is entitled to vote at a meeting of shareholders may, in accordance with section 89 make a proposal for, the voluntary liquidation and dissolution of a corporation.
138(2)Notice of any meeting of shareholders at which voluntary liquidation and dissolution is to be proposed shall set out the terms thereof.
138(3)A corporation may liquidate and dissolve by special resolution of the shareholders or, when the corporation has issued more than one class of shares, by special resolution of the holders of each class of shares whether or not they are entitled to vote.
138(4)A statement of intent to dissolve shall be sent to the Director in the form provided by the Director.
138(5)Upon receipt of a statement of intent to dissolve, the Director shall issue a certificate of intent to dissolve.
138(6)Upon issue of a certificate of intent to dissolve, the corporation shall cease to carry on business except to the extent necessary for the liquidation, but its corporate existence continues until the Director issues a certificate of dissolution.
138(7)After issue of a certificate of intent to dissolve, the corporation shall
(a) immediately cause notice thereof to be sent or delivered to each known creditor of the corporation;
(b) forthwith publish notice thereof once a week for four consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and take reasonable steps to give notice thereof in each province in Canada where the corporation was carrying on business at the time it sent the statement of intent to dissolve to the Director;
(c) proceed to collect its property, to dispose of properties that are not to be distributed in kind to its shareholders, to discharge all its obligations and to do all other acts required to liquidate its business; and
(d) after giving the notice required under paragraphs (a) and (b) and adequately providing for the payment or discharge of all its obligations, distribute its remaining property, either in money or in kind, among its shareholders according to their respective rights.
138(8)The Director or any interested person may, at any time during the liquidation of a corporation, apply to the Court for an order that the liquidation be continued under the supervision of the Court as provided in this Part, and upon such application the Court may so order and make any further order it thinks fit.
138(9)An applicant under this section shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel.
138(10)At any time after issue of a certificate of intent to dissolve and before issue of a certificate of dissolution, a certificate of intent to dissolve may be revoked by sending to the Director a statement of revocation of intent to dissolve in the form provided by the Director, if such revocation is approved in the same manner as the resolution under subsection (3).
138(11)Upon receipt of a statement of revocation of intent to dissolve, the Director shall issue a certificate of revocation of intent to dissolve.
138(12)On the date shown in the certificate of revocation of intent to dissolve, the revocation is effective and the corporation may again carry on its business or businesses.
138(13)If a certificate of intent to dissolve has not been revoked and the corporation has complied with subsection (7), the corporation shall prepare articles of dissolution.
138(14)Articles of dissolution shall be sent to the Director in the form provided by the Director.
138(15)Upon receipt of articles of dissolution, the Director shall issue a certificate of dissolution.
138(16)The corporation ceases to exist on the date shown in the certificate of dissolution.
2014, c.50, s.14; 2023, c.2, s.104; 2023, c.2, s.155
Dissolution by the Director
139(1)Subject to subsections (2) and (3), the Director may dissolve the corporation by issuing a certificate of dissolution under this section, or the Director may apply to the Court for an order dissolving the corporation and in which case section 144 applies, when the corporation
(a) has not commenced business within three years after the date shown in its certificate of incorporation,
(b) has not carried on its business for three consecutive years,
(c) is in default in sending to the Director any fee, notice or document required by this Act,
(d) does not have any directors, unless the corporation is a corporation established without a board of directors within the meaning of Part XVII.1, or
(e) has not complied with section 17, subsection 18(1) or (4) or section 19 of this Act and has not rectified the non-compliance to the satisfaction of the Director within 60 days of being notified of the non-compliance by the Director.
139(2)The Director shall not dissolve a corporation under this section unless the Director has
(a) sent by ordinary mail notice of the Director’s decision to dissolve the corporation to the corporation at its registered office or to its mailing or email address as indicated in the records of the Director, and
(b) published notice of the Director’s decision to dissolve the corporation in The Royal Gazette.
139(2.1)Publication in The Royal Gazette of the notice of the Director’s decision to dissolve a corporation shall be deemed to be notice to the corporation.
139(2.2)Sixty days after the notice of the Director’s decision to dissolve a corporation is published in The Royal Gazette, the Director may dissolve the corporation.
139(3)Unless cause to the contrary has been shown or an order has been made by the Court under section 144, the Director may, after the expiry of the period referred to in subsection (2.2), issue a certificate of dissolution.
139(4)The corporation ceases to exist on the date shown in the certificate of dissolution.
1983, c.15, s.21; 1984, c.17, s.9; 1997, c.22, s.2; 2023, c.2, s.105; 2023, c.2, s.155
Dissolution by Court order
140(1)The Director or any interested person may apply to the Court for an order dissolving a corporation if the corporation has
(a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings of shareholders;
(b) contravened subsection 14(2), or section 19, 101 or 103; or
(c) procured any certificate under this Act by misrepresentation.
140(2)An applicant under this section other than the Director shall give the Director notice of the application, and the Director is entitled to appear and be heard in person or by counsel.
140(3)Upon an application under this section or section 139, the Court may
(a) order that the corporation be dissolved;
(b) order that the corporation be liquidated and dissolved under the supervision of the Court; or
(c) make any other order it thinks fit.
140(4)Upon receipt of an order under this section, section 139 or section 141, the Director shall,
(a) if the order is to dissolve the corporation, issue a certificate of dissolution; or
(b) if the order is to liquidate and dissolve the corporation under the supervision of the Court, issue a certificate of intent to dissolve and publish notice of such order in The Royal Gazette.
140(5)The corporation ceases to exist on the date shown in the certificate of dissolution.
2014, c.50, s.15; 2023, c.2, s.155
Application by shareholder for Court order for liquidation and dissolution
141(1)On application of a shareholder, the Court may order the liquidation and dissolution of a corporation or any of its affiliated corporations,
(a) if the Court is satisfied that, in respect of a corporation or any of its affiliates,
(i) any act or omission of the corporation or any of its affiliates effects a result that is oppressive or unfairly prejudicial to the corporation or any of its affiliates or unfairly disregards the interests of any security holder, creditor, director or officer, or
(ii) the business or affairs of the corporation or any of its affiliates, or the powers of the directors, are or have been carried on or conducted in a manner that is oppressive or unfairly prejudicial to or unfairly disregards the interests of any security holder, creditor, director or officer, or
(b) if the Court is satisfied that
(i) a unanimous shareholder agreement entitles a complaining shareholder to demand dissolution of the corporation after the occurrence of a specified event and that event has occurred, or
(ii) it is just and equitable that the corporation should be liquidated and dissolved.
141(2)In an application under this section, the Court may make such order under this section or section 166 as it thinks fit.
141(3)Section 167 applies to an application under this section.
1991, c.27, s.5; 2023, c.2, s.106
Application for Court supervision of voluntary liquidation and dissolution
142(1)An application to the Court to supervise a voluntary liquidation and dissolution under subsection 138(8) shall state the reasons, verified by an affidavit of the applicant, why the Court should supervise the liquidation and dissolution.
142(2)If the Court makes an order applied for under subsection 138(8), the liquidation and dissolution of the corporation shall continue under the supervision of the Court in accordance with this Act.
2023, c.2, s.155
Procedure on application
143(1)An application under subsection 141(1) shall state the reasons, verified by an affidavit of the applicant, why the corporation should be liquidated and dissolved.
143(2)Upon an application under subsection 141(1), the Court may make an order requiring the corporation and any person having an interest in the corporation or claim against it to show cause, at a time and place therein specified, not less than four weeks after the date of the order, why the corporation should not be liquidated and dissolved.
143(3)Upon an application under subsection 141(1) the Court may order the directors and officers of the corporation to furnish to the Court all material information known to or reasonably ascertainable by them, including
(a) a financial statement of the corporation;
(b) the name and address of each shareholder of the corporation; and
(c) the name and address of each creditor or claimant, including any creditor or claimant with unliquidated, future or contingent claims, and any person with whom the corporation has a contract.
143(4)A copy of an order made under subsection (2) shall be
(a) published as directed in the order, at least once in each week before the time appointed for the hearing, in a newspaper published or distributed in the place where the corporation has its registered office; and
(b) served upon the Director and each person named in the order.
143(5)Publication and service of an order under this section shall be effected by the corporation or by such other person and in such manner as the Court may order.
2000, c.9, s.18; 2023, c.2, s.155
Order of the Court and effect of order
144(1)In connection with the dissolution or the liquidation and dissolution of a corporation, the Court may, if it is satisfied that the corporation is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order to liquidate;
(b) an order appointing a liquidator, with or without security, fixing his remuneration or replacing a liquidator;
(c) an order appointing inspectors or referees, specifying their powers, fixing their remuneration or replacing inspectors or referees;
(d) an order determining the notice to be given to any interested person, or dispensing with notice to any person;
(e) an order determining the validity of any claims made against the corporation;
(f) an order at any stage of the proceedings, restraining the directors and officers from
(i) exercising any of their powers, or
(ii) collecting or receiving any debt or other property of the corporation, and from paying out or transferring any property of the corporation, except as permitted by the Court;
(g) an order determining and enforcing the duty or liability of any director, officer or shareholder
(i) to the corporation, or
(ii) for an obligation of the corporation;
(h) an order approving the payment, satisfaction or compromise of claims against the corporation and the retention of assets for such purpose, and determining the adequacy of provisions for the payment or discharge of obligations of the corporation, whether liquidated, unliquidated, future or contingent;
(i) an order disposing of or destroying the documents and records of the corporation;
(j) upon the application of a creditor, the inspectors or the liquidator, an order giving directions on any matter arising in the liquidation;
(k) after notice has been given to all interested parties, an order relieving a liquidator from any omission or default on such terms as the Court thinks fit and confirming any act of the liquidator;
(l) subject to subsection 149(2), an order approving any proposed interim or final distribution to shareholders in money or in property;
(m) an order disposing of any property belonging to creditors or shareholders who cannot be found;
(n) upon the application of any director, officer, security holder, creditor or the liquidator,
(i) an order staying the liquidation on such terms and conditions as the Court thinks fit,
(ii) an order continuing or discontinuing the liquidation proceedings, or
(iii) an order to the liquidator to restore to the corporation all its remaining property; and
(o) after the liquidator has rendered his final account to the Court, an order dissolving the corporation.
144(2)The liquidation of a corporation commences when the Court makes an order therefor.
1991, c.27, s.5; 2023, c.2, s.107; 2023, c.2, s.155
Role of liquidator and delegation of powers
145(1)If the Court makes an order for liquidation of a corporation,
(a) the corporation continues in existence but shall cease to carry on business, except the business that is, in the opinion of the liquidator, required for an orderly liquidation; and
(b) the powers of the officers, directors and shareholders cease and vest in the liquidator, except as specifically authorized by the Court.
145(2)The liquidator may delegate any of the powers vested in him by paragraph (1)(b) to the officers, directors or shareholders.
2000, c.9, s.19; 2023, c.2, s.155
Appointment of liquidator by the Court
146(1)When making an order for the liquidation of a corporation or at any time thereafter, the Court may appoint any person, including a director, an officer or a shareholder or any other body corporate, as liquidator of the corporation.
146(2)Where an order for the liquidation of a corporation has been made and the office of liquidator is or becomes vacant, the property of the corporation is under the control of the Court until the office of liquidator is filled.
2023, c.2, s.108; 2023, c.2, s.155
Duties of liquidator
147A liquidator shall
(a) forthwith after his appointment give notice thereof to the Director and to each claimant and creditor known to the liquidator;
(b) forthwith publish notice in The Royal Gazette and by insertion once a week for two consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and in such other places and manner as the Court may direct, requiring any person
(i) indebted to the corporation, to render an account and pay to the liquidator at the time and place specified any amount owing,
(ii) possessing property of the corporation, to deliver it to the liquidator at the time and place specified, and
(iii) having a claim against the corporation, whether liquidated, unliquidated, future or contingent, to present particulars thereof in writing to the liquidator not later than two months after the first publication of the notice;
(c) take into his custody and control the property of the corporation;
(d) open and maintain a trust account for the money of the corporation;
(e) keep accounts of the money of the corporation received and paid out by him;
(f) maintain separate lists of the shareholders, creditors and other persons having claims against the corporation;
(g) if at any time the liquidator determines that the corporation is unable to pay or adequately provide for the discharge of its obligations, apply to the Court for directions;
(h) deliver to the Court and to the Director, at least once in every twelve-month period after his appointment or more often as the Court may require, financial statements of the corporation in the form required by section 100 or in such other form as the liquidator may think proper or as the Court may require; and
(i) after his final accounts are approved by the Court, distribute any remaining property of the corporation among the shareholders according to their respective rights.
2023, c.2, s.155
Powers and liability protection of liquidator
148(1)A liquidator may
(a) retain lawyers, accountants, engineers, appraisers and other professional advisers;
(b) bring, defend or take part in any civil, criminal or administrative action or proceeding in the name and on behalf of the corporation;
(c) carry on the business of the corporation as required for an orderly liquidation;
(d) sell by public auction or private sale any property of the corporation;
(e) do all acts and execute any documents in the name and on behalf of the corporation;
(f) borrow money on the security of the property of the corporation;
(g) settle or compromise any claims by or against the corporation; and
(h) do all other things necessary for the liquidation of the corporation and distribution of its property.
148(2)A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on
(a) financial statements of the corporation represented to the liquidator by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation,
(b) a report or the advice of an officer or employee of the corporation, if it is reasonable in the circumstances to rely on the report or advice, or
(c) a report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by that person.
148(3)If a liquidator has reason to believe that any person has in his possession or under his control, or has concealed, withheld or misappropriated any property of the corporation, he may apply to the Court for an order requiring that person to appear before the Court at the time and place designated in the order and to be examined.
148(4)If the examination referred to in subsection (3) discloses that a person has concealed, withheld or misappropriated property of the corporation, the Court may order that person to restore it or pay compensation to the liquidator.
2023, c.2, s.109; 2023, c.2, s.155
Costs of liquidation and final accounting
149(1)A liquidator shall pay the costs of liquidation out of the property of the corporation and shall pay or make adequate provision for all claims against the corporation.
149(2)Within one year after his appointment, and after paying or making adequate provision for all claims against the corporation, the liquidator shall apply to the Court
(a) for approval of his final accounts and for an order permitting him to distribute in money or in kind the remaining property of the corporation to its shareholders according to their respective rights; or
(b) for an extension of time, setting out the reasons therefor.
149(3)If a liquidator fails to make the application required by subsection (2), a shareholder of the corporation may apply to the Court for an order for the liquidator to show cause why a final accounting and distribution should not be made.
149(4)A liquidator shall give notice of his intention to make an application under subsection (2) to the Director, each inspector appointed under section 144, each shareholder and any person who provided a security or fidelity bond for the liquidation, and he shall publish the notice in a newspaper published or distributed in the place where the corporation has its registered office or as otherwise directed by the Court.
149(5)If the Court approves the final accounts rendered by a liquidator, the Court shall make an order
(a) directing the Director to issue a certificate of dissolution;
(b) directing the custody or disposal of the documents and records of the corporation; and
(c) subject to subsection (6), discharging the liquidator.
149(6)The liquidator shall forthwith send or deliver a certified copy of the order referred to in subsection (5) to the Director.
149(7)Upon receipt of the order referred to in subsection (5), the Director shall issue a certificate of dissolution.
149(8)The corporation ceases to exist on the date shown in the certificate of dissolution.
2023, c.2, s.155
Power of the Court to order distribution of property in money
150(1)If in the course of liquidation of a corporation the shareholders resolve or the liquidator proposes to
(a) exchange all or substantially all of the property of the corporation for securities of another body corporate that are to be distributed to the shareholders, or
(b) distribute all or part of the property of the corporation to the shareholders in kind,
a shareholder may apply to the Court for an order requiring the distribution of the property of the corporation to be in money.
150(2)Upon an application under subsection (1), the Court may order
(a) all the property of the corporation to be converted into and distributed in money; or
(b) the claims of any shareholder applying under this section to be satisfied by a distribution in money or in such manner as the Court may direct.
2023, c.2, s.110; 2023, c.2, s.155
Custody of documents
151(1)A person who has been granted custody of the documents and records of a dissolved corporation remains liable to produce such documents and records for six years following the date of its dissolution or until the expiry of such other shorter period as may be ordered under subsection 149(5).
151(2)Repealed: 2008, c.11, s.4
2008, c.11, s.4; 2023, c.2, s.155
Liability of corporation and shareholders within two years after dissolution
2023, c.2, s.155
152(1)In this section “shareholder” includes the heirs and personal representatives of a shareholder.
152(2)Notwithstanding the dissolution of a corporation under this Act,
(a) a civil, criminal or administrative action or proceeding commenced by or against the corporation before its dissolution may be continued as if the corporation had not been dissolved;
(b) a civil, criminal or administrative action or proceeding may be brought against the corporation within two years after its dissolution as if the corporation 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 corporation had not been dissolved remains available for such purpose.
152(3)Service of a document on a corporation after its dissolution may be effected by serving the document upon a person shown in the last notice filed under section 64 or 71.
152(4)Notwithstanding the dissolution of a corporation, a shareholder to whom any of its property has been distributed is liable to any person claiming under subsection (2) 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 the dissolution of the corporation.
152(5)A Court may order an action referred to in subsection (4) to be brought against the persons who were shareholders as a class, subject to such conditions as the Court thinks fit and, if the plaintiff establishes his claim, the Court may refer the proceedings to a referee or other officer of the Court who may
(a) add as a party to the proceedings before him each person found by the plaintiff who was a shareholder;
(b) determine, subject to a subsection (4), the amount that each person who was a shareholder shall contribute towards satisfaction of the plaintiff’s claim; and
(c) direct payment of the amounts so determined.
2023, c.2, s.111; 2023, c.2, s.155
Distribution of property to creditor or shareholder who cannot be found
153(1)Upon the dissolution of a corporation, 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.
153(2)A payment under subsection (1) shall be deemed to be in satisfaction of a debt or claim of such creditor or shareholder.
153(3)If at any time a person establishes that he 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 him out of the Consolidated Fund.
1991, c.27, s.5; 2019, c.29, s.18; 2023, c.2, s.155; 2023, c.17, s.17
Vesting of property of corporation in the Crown and effect of revival under section 136
2023, c.2, s.155; 2023, c.17, s.17
154(1)Subject to subsection 152(2) and section 153, property of a corporation that has not been disposed of at the date of its dissolution vests in the Crown in right of the Province.
154(2)If a corporation is revived under section 136, 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 corporation and there shall be paid to the corporation 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.
154(3)When a corporation is revived under section 136, any property other than money to be returned to the corporation in accordance with subsection (2) shall vest in the corporation without any deed, bill of sale or other document from the Crown or any action by the Crown.
2000, c.46, s.2; 2023, c.2, s.155; 2023, c.17, s.17
XIV
INVESTIGATIONS
Investigation of corporation, conditions and procedure
155(1)The holders of not less than 5% of the issued shares of any class of the corporation or the Director may apply, ex parte or upon such notice as the Court may require, to the Court for an order directing an investigation to be made of the corporation and any of its affiliated corporations.
155(2)If, upon an application under subsection (1), it appears that
(a) the business of the corporation or any of its affiliates is or has been carried on with intent to defraud any person,
(b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the powers of the directors are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of a security holder,
(c) the corporation or any of its affiliates was formed for a fraudulent or unlawful purpose or is to be dissolved for a fraudulent or unlawful purpose, or
(d) persons concerned with the formation, business or affairs of the corporation or any of its affiliates have in connection therewith acted fraudulently or dishonestly,
the Court may order an investigation to be made of the corporation and any of its affiliated corporations.
155(3)If a security holder makes an application under subsection (1) he shall give the Director reasonable notice thereof, and with leave of the Court the Director may appear and be heard in person or by counsel.
155(4)An applicant under this section shall provide such security for costs as the Court may order.
155(5)An application under this section shall be heard in camera.
155(6)No person shall publish anything relating to ex parte proceedings under this section except with the authorization of the Court or the written consent of the corporation being investigated.
1987, c.6, s.5; 2000, c.9, s.20; 2023, c.2, s.112; 2023, c.2, s,.155
Powers of the Court and report of inspector
156(1)In connection with an investigation under this Part, the Court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order to investigate;
(b) an order appointing an inspector, other than the Director, fixing the remuneration of an inspector, and replacing an inspector;
(c) an order determining the notice to be given to any interested person, or dispensing with notice to any person;
(d) an order authorizing an inspector to enter any premises in which the Court is satisfied there might be relevant information, and to examine anything and make copies of any document or record found on the premises;
(e) an order requiring any person to produce documents or records to the inspector;
(f) an order authorizing an inspector to conduct a hearing, administer oaths and examine any person upon oath, and prescribing rules for the conduct of the hearing;
(g) an order requiring any person to attend a hearing conducted by an inspector and to give evidence upon oath;
(h) an order giving directions to an inspector or any interested person on any matter arising in the investigation;
(i) an order requiring an inspector to make an interim or final report to the Court;
(j) an order determining whether a report of an inspector should be published and, if so, ordering the Director to publish the report in whole or in part or to send copies to any person the Court designates;
(k) an order requiring an inspector to discontinue an investigation; and
(l) an order requiring any person, other than the Director, to pay all or part of the costs of the investigation.
156(2)An inspector shall send to the Director a copy of every report made by the inspector under this Part.
2023, c.2, s.113
Powers of inspector
157(1)An inspector under this Part has the powers set out in the order appointing him.
157(2)In addition to the powers set out in the order appointing him, an inspector appointed to investigate a corporation may furnish to, or exchange information and otherwise cooperate with, any public official in Canada or elsewhere who is authorized to exercise investigatory powers and who is investigating, in respect of the corporation, any allegation of improper conduct that is the same as or similar to the conduct described in subsection 155(2).
157(3)An inspector shall upon request produce to an interested person a copy of any order made under subsection 156(1).
2023, c.2, s.155
Hearing in camera and right to representation
158(1)Any interested person may apply to the Court for an order that a hearing conducted by an inspector under this Part be heard in camera and for directions on any matter arising in the investigation.
158(2)An individual who is being examined at a hearing conducted by an inspector under this Part has a right to be represented by counsel during the examination.
Criminating statements
159No person is excused from attending and giving evidence and producing documents and records to an inspector under this Part by reason only that the evidence tends to criminate him or subject him to any proceeding or penalty, but no such evidence shall be used or is receivable against him in any proceeding thereafter instituted against him under any Act of New Brunswick.
Absolute privilege
160Any oral or written statement or report made in good faith by an inspector or any other person in an investigation under this Part has absolute privilege.
Solicitor - client privilege
161Nothing in this Part shall be construed to affect the privilege that exists in respect of a solicitor and his client.
Inquiries by Director
162The Director may make inquiries of any person relating to compliance with this Act.
XV
REMEDIES, OFFENCES AND PENALTIES
Definitions
163In this Part,
“action” means an action under this Act;(action)
“complainant” means(plaignant)
(a) a registered holder or beneficial owner, or a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates,
(b) a director or an officer or a former director or officer of a corporation or of any of its affiliates,
(c) a creditor of the corporation,
(d) the Director, or
(e) any other person who, in the discretion of the Court, is a proper person to make an application under this Part.
2023, c.2, s.114; 2023, c.2, s.155
Derivative action
164(1)Subject to subsection (2), a complainant may apply to the Court for leave to bring an action in the name and on behalf of a corporation or any of its subsidiaries, or for leave to intervene in an action to which any such body corporate is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the body corporate.
164(2)No action may be brought and no intervention in any action may be made under subsection (1) unless the Court is satisfied that
(a) the complainant has given reasonable notice to the directors of the corporation or its subsidiary of his intention to apply to the Court under subsection (1) if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action;
(b) the complainant is acting in good faith; and
(c) it appears to be in the interests of the corporation or its subsidiary that the action be brought, prosecuted, defended or discontinued.
2000, c.9, s.21; 2023, c.2, s.115; 2023, c.2, s.155
Powers of the Court
165In connection with an action brought or intervened in under section 164, the Court may at any time make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order authorizing the complainant or any other person to control the conduct of the action;
(b) an order giving directions for the conduct of the action;
(c) an order directing that any amount adjudged payable by a defendant in the action shall be paid, in whole or in part, directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary; and
(d) an order requiring the corporation or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action.
2023, c.2, s.116; 2023, c.2, s.155
Orders of the Court
166(1)A complainant may apply to the Court for an order under this section.
166(2)If, upon an application under subsection (1), the Court is satisfied that in respect of a corporation or any of its affiliates
(a) any act or omission of the corporation or any of its affiliates effects a result,
(b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or
(c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner,
that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the Court may make an order to rectify the matters complained of.
166(3)In connection with an application under this section the Court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining the conduct complained of;
(b) an order appointing a receiver or receiver-manager;
(c) an order to regulate a corporation’s affairs by amending the articles or by-laws or creating or amending a unanimous shareholder agreement;
(d) an order directing an issue or exchange of securities;
(e) an order appointing directors in place of or in addition to all or any of the directors then in office;
(f) an order directing a corporation, subject to subsection (6), or any other person, to purchase shares of a shareholder;
(g) an order directing a corporation, subject to subsection (6), or any other person, to pay a security holder any part of the monies that the security holder paid for securities;
(h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract;
(i) an order requiring a corporation, within a time specified by the Court, to produce to the Court or an interested person financial statements in the form required by section 100 or an accounting in such other form as the Court may determine;
(j) an order compensating an aggrieved person;
(k) an order directing rectification of the registers or other records of a corporation under section 168;
(l) an order liquidating and dissolving the corporation;
(m) an order directing an investigation under Part XIV to be made; and
(n) an order requiring the trial of any issue.
166(4)If an order made under this section directs amendments of the articles or by-laws of a corporation,
(a) the directors shall forthwith comply with subsection 132(4); and
(b) no other amendment to the articles or by-laws shall be made without the consent of the Court, until the Court otherwise orders.
166(5)A shareholder is not entitled to dissent under section 131 if an amendment to the articles is effected under this section.
166(6)A corporation shall not be ordered to make a payment to a security holder under paragraph (3)(f) or (g) if
(a) the corporation is or would after that payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities.
166(7)An applicant under this section may apply in the alternative for an order under section 141.
1984, c.17, s.10; 2023, c.2, s.117; 2023, c.2, s.155
Action stayed or dismissed
167(1)An application made or an action brought or intervened in under this Part shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the corporation or its subsidiary has been or may be approved by the shareholders of such body corporate, but evidence of approval by the shareholders may be taken into account by the Court in making an order under section 141, 165 or 166.
167(2)An application made or an action brought or intervened in under this Part shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the Court given upon such terms as the Court thinks fit and, if the Court determines that the interests of any complainant may be substantially affected by such stay, discontinuance, settlement or dismissal, the Court may order any party to the application or action to give notice to the complainant.
167(3)A complainant shall give such security for costs in any application made or action brought or intervened in under this Part as may be ordered by the Court.
167(4)In an application made or an action brought or intervened in under this Part, the Court may at any time order the corporation or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant is accountable for such interim costs upon final disposition of the application or action.
2023, c.2, s.155
Rectification of registers and records
168(1)If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the registers or other records of a corporation, the corporation, a security holder of the corporation or any aggrieved person may apply to the Court for an order that the registers or records be rectified.
168(1.1)An aggrieved person may apply to the Court for an order that the registers or records be rectified if
(a) the name of the person is alleged to be or to have been wrongly set out on a form filed with the Director under this Act,
(b) the name of a person is alleged to be or to have been wrongly deleted or omitted from a form filed with the Director under this Act, or
(c) the Director has failed to file a notice of change of directors in accordance with this Act.
168(2)An applicant under this section shall give the following persons notice of the application:
(a) the Director, and the Director, with leave of the Court, may appear and be heard in person or by counsel; and
(b) the corporation, and the corporation is entitled to appear and be heard in person or by counsel.
168(3)In connection with an application under this section, the Court may make any order it thinks fit including, without limiting the generality of the foregoing,
(a) an order requiring the registers or records of the corporation to be rectified;
(b) an order restraining the corporation from calling or holding a meeting of shareholders or paying a dividend or making any other distribution or payment to shareholders before the rectification;
(c) an order determining the right of a party to the proceedings to have the party’s name entered or retained in, or deleted or omitted from, the registers or records of the corporation, whether the issue arises between two or more security holders or between the corporation and any security holders or alleged security holders;
(d) an order compensating a party who has incurred a loss;
(e) an order directing rectification of the registers or other records of the Director; and
(f) an order requiring the corporation to file a notice of change of directors with the Director.
2000, c.9, s.22; 2023, c.2, s.118; 2023, c.2, s.155
Application for directions by the Director
169The Director may apply to the Court for directions in respect of any matter concerning his duties under this Act, and on such application the Court may give such directions and make such further order as it thinks fit.
Notice of refusal to file documents, when documents deemed to be filed
170(1)If the Director refuses to file any articles or other document required by this Act to be filed by the Director before the articles or other document become effective, the Director shall, within 20 days after receipt of the articles or other document by Director or 30 days after the Director receives any approval that may be required under any other Act, whichever is later, give written notice of the Director’s refusal, which shall state the reasons for the refusal, to the person who sent the articles or document.
170(2)If the Director does not file or give written notice of the refusal to file any articles or document within the time referred to in subsection (1), the Director is deemed for the purposes of section 171 to have refused to file the articles or document.
2023, c.2, s.119
Appeal from decision of the Director
171A person who is aggrieved by a decision of the Director
(a) to refuse to file in the form submitted to him any articles or other document required by this Act to be filed by him,
(b) to give a name, to change or revoke a name, or to refuse to reserve, accept, change or revoke a name under section 10,
(c) to refuse to grant an exemption under subsection 8(2), and any regulations thereunder,
(d) to refuse to issue a certificate of discontinuance under section 127,
(e) to refuse to revive a corporation under section 136, or
(f) to dissolve a corporation under section 139,
may apply to the Court for an order requiring the Director to change his decision, and upon such application the Court may so order and make any further order it thinks fit.
2023, c.2, s.155; 2023, c.2, s.156
Restraining order
172If a corporation or any director, officer, employee, agent, auditor, trustee, receiver, receiver-manager or liquidator of a corporation does not comply with this Act, the regulations, articles, by-laws, or a unanimous shareholder agreement a complainant may, in addition to any other right he has, apply to the Court for an order directing any such person to comply with, or restraining any such person from acting in breach of, any provisions thereof, and upon such application the Court may so order and make any further order it thinks fit.
2023, c.2, s.155
Summary application
173Where this Act states that a person may apply to the Court, the application may be made in a summary manner as the Rules of Court provide, and subject to any order respecting notice to interested parties or costs, or any other order the Court thinks fit.
1983, c.15, s.22
Appeals
174An appeal lies to the Court of Appeal from any order made by The Court of King’s Bench of New Brunswick under this Act.
1987, c.6, s.5; 2023, c.17, s.17
Offences
175(1)A person who knowingly makes or assists in making a report, return, notice or other document required by this Act or the regulations to be sent to the Director or to any other person 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 the 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.
175(2)When a body corporate commits an offence under subsection (1), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and commits the offence and on conviction is liable to the punishment provided for the offence, whether or not the body corporate has been prosecuted or convicted.
175(3)No person is guilty of an offence under subsection (1) or (2) if the person did not know, and in the exercise of reasonable diligence could not have known, of the untrue statement or omission.
2008, c.11, s.4; 2023, c.2, s.120
Order to comply, continuing offences, limitation period, civil remedy
176(1)Where a person commits an offence under this Act, any court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order that person to comply with the provisions of this Act for the contravention of which he has been convicted.
176(2)Repealed: 2008, c.11, s.4
176(3)If an offence under this Act continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
176(4)Any prosecution for an offence under this Act may be instituted at any time within two years from the time when the subject matter of the complaint arose.
176(5)No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence under this Act.
2000, c.9, s.23; 2008, c.11, s.4
XVI
GENERAL
Notice to shareholders or directors
177(1)A notice or document required by this Act, the regulations, the articles or the by-laws to be sent to a shareholder or director of a corporation may be sent by prepaid mail addressed to, or may be delivered personally to,
(a) the shareholder at his latest address as shown in the records of the corporation or its transfer agent; or
(b) the director at his latest address as shown in the records of the corporation or in the last notice filed under section 64 or 71.
177(2)A director named in a notice sent by a corporation to the Director under section 64 or 71 and filed by the Director is presumed for the purposes of this Act to be a director of the corporation referred to in the notice.
177(3)A notice or document sent in accordance with subsection (1) to a shareholder or director of a corporation shall be deemed to be received by him at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the shareholder or director did not receive the notice or document at that time or at all.
177(4)If a corporation sends a notice or document to a shareholder in accordance with subsection (1) and the notice or document is returned on two consecutive occasions because the shareholder cannot be found, the corporation is not required to send any further notices or documents to the shareholder until the shareholder informs the corporation in writing of their new address.
2023, c.2, s.121; 2023, c.2, s.155
Notice to corporation
2023, c.2, s.155
178(1)A notice or document required to be sent to or served upon a corporation may be sent by registered mail to the registered office of the corporation shown in the last notice filed under section 17 and, if so sent, shall be deemed to be received or served at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the corporation did not receive the notice or document at that time or at all.
178(2)If there are reasonable grounds for believing that a corporation will not receive a notice or document, then a notice or document required to be sent to or served upon a corporation may be sent by registered mail to or served upon any director of the corporation as shown in the last notice filed under subsection 64(1) or 71(1), and, if so sent, shall be deemed to be received or served on the corporation at the time it would be delivered in the ordinary course of mail to such director or served upon such director, unless there are reasonable grounds for believing that the director did not receive the notice or document at the time or at all.
1983, c.15, s.23; 2023, c.2, s.155
Waiver of notice
179Where a notice or document is required by this Act or the regulations to be sent, the notice may be waived or the time for the notice may be waived or abridged at any time, either before or after the event, with the consent in writing of the person entitled thereto.
Electronic signature
2023, c.2, s.122
179.1 A requirement under this Act that a document be signed is satisfied by an electronic signature as defined in the Electronic Transactions Act.
2023, c.2, s.122
Certificate of the Director, as evidence
180(1)Where this Act requires or authorizes the Director to issue a certificate or to certify any fact, the certificate shall be signed by the Director.
180(1.1)For the purposes of subsection (1), any signature of the Director may be printed, stamped or otherwise mechanically reproduced.
180(2)Except in a proceeding under section 140 to dissolve a corporation, a certificate referred to in subsection (1) or a certified copy of it, when introduced as evidence in any civil, criminal, administrative, investigative or other action or proceeding, is conclusive proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate.
1987, c.4, s.2; 2004, c.6, s.1; 2023, c.2, s.123
Certificate of a corporation, as evidence
2023, c.2, s.155
181(1)A certificate issued on behalf of a corporation stating any fact that is set out in the articles, the by-laws, a unanimous shareholder agreement, the minutes of the meetings of the directors, a committee of directors or the shareholders, or in a trust indenture or other contract to which the corporation is a party may be signed by a director or an officer of the corporation.
181(2)When introduced as evidence in any civil, criminal or administrative action or proceeding,
(a) a certificate referred to in subsection (1),
(b) a certified extract from any register of a corporation, or
(c) a certified copy of minutes or extracts from minutes of a meeting of shareholders, directors or a committee of directors of a corporation,
is, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate.
181(3)An entry in a share register of, or a security certificate issued by, a corporation is, in the absence of evidence to the contrary, proof that the registered holder is owner of the share described in the register or in the certificate.
2023, c.2, s.155; 2023, c.2, s.157
Photostatic copies - acceptance by Director
182Where a notice or document is required to be sent to the Director under this Act, the Director may accept a photostatic, photographic or electronic copy thereof.
2023, c.2, s.124
Verification of documents
183(1)The Director may require that a document or a fact stated in a document required by this Act or the regulations to be sent to the Director shall be verified in accordance with subsection (2).
183(2)A document or fact required by this Act or by the Director to be verified may be verified by affidavit or statutory declaration by any Commissioner of Oaths.
183(3)When a corporation does not respond under subsection (1) within 60 days, the Director may give notice of intent to dissolve the corporation or to cancel the registration of an extra-provincial corporation and sections 139 and 201, as the case may be, apply with the necessary modifications.
2023, c.2, s.125
Director may require proof
2023, c.2, s.126
183.1The Director may require satisfactory proof from an incorporator or any person filing a document under this Act of the following:
(a) the identity and address of the incorporators;
(b) the identity and address of any persons named as first directors and that they are not disqualified from becoming first directors under this Act;
(c) that the address of the proposed registered office of the corporation complies with sections 18 and 19; and
(d) any other fact stated in a document.
2023, c.2, s.126
Directives
2023, c.2, s.126
183.2(1)In this section, “Corporate Registry” means the documents, records and information recording system maintained by the Director under which the Director maintains documents, records and information under this Act.
183.2(2)The Director may from time to time issue written directives in relation to any document required by this Act to be filed and records required by this Act to be prepared and maintained and that are maintained by the Director in the Corporate Registry, and any corporation, body corporate, firm or other person shall comply with the written directive.
183.2(3)The Regulations Act does not apply to directives referred to in subsection (2).
2023, c.2, s.126
Appointment of the Director and deputy directors
184(1)Service New Brunswick may appoint a Director to carry out the purposes of this Act.
184(1.1)Service New Brunswick may appoint one or more deputy directors to carry out the purposes of this Act.
184(2)Service New Brunswick or the Director may authorize a deputy director to carry out or to exercise any duties or any powers that may be carried out or exercised by the Director under this Act.
184(3)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.
184(4)The deputy director in possession of a written authority referred to in subsection (3) shall, upon proof that his name is the same as the deputy director named therein, be deemed to be the deputy director named therein.
184(5)A written authority issued by the officer or the Director under subsection (3) shall be effective until revoked.
2002, c.29, s.1; 2023, c.2, s.127
Regulations
185(1)The Lieutenant-Governor in Council may make regulations
(a) prescribing any matter required or authorized by this Act to be prescribed;
(b) requiring the payment of a fee in respect of the filing, examination or copying of any document, or in respect of any action that the Director is required or authorized to take under this Act;
(c) prescribing the amount of any fee required to be paid under this Act or the regulations;
(c.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;
(c.2) setting terms and conditions relating to the payment of fees;
(d) respecting the format and contents of annual returns, notices and other documents required to be sent to the Director or to be issued by him;
(e) prescribing rules with respect to exemptions permitted by this Act;
(e.1) defining “bank” for the purposes of paragraph 195(d);
(f) prescribing recognized stock exchanges for the purpose of this Act;
(g) prescribing rules with respect to names prohibited by this Act.
(h) Repealed: 2023, c.2, s.128
185(2)Repealed: 2023, c.2, s.128
1997, c.22, s.3; 2000, c.9, s.24; 2023, c.2, s.128
Forms provided by the Director
185.1(1)The Director may prescribe the form and content of the forms that are required to be sent to the Director under this Act, including prescribing whether a signature is required and any additional requirements respecting signatures.
185.1(2)The Director may, in the forms referred to in subsection (1), request personal information either directly from an individual to which the information relates, or indirectly, from any other person authorized to complete the form.
185.1(3)The Regulations Act does not apply to forms or requirements referred to in subsection (1).
185.1(4)If there is a conflict or an inconsistency between a form referred to in subsection (1) and this Act or any regulation made under this Act, this Act or the regulation made under this Act prevails.
2014, c.50, s.16
Director’s use of email address
2023, c.2, s.129
185.2(1)The Director may use an email address for the purposes of communicating with the corporation and its personal representative or agent if
(a) the email address is provided by the corporation when filing a document under this Act, or
(b) the corporation, on consent, provides the email address of the corporation to the Director for the purpose of communicating with a corporation and its personal representative or agent.
185.2(2)For the purposes of subsection (1), the purposes of communicating include
(a) sending a notice of the requirement to file an annual return or other document under this Act,
(b) notifying a corporation of the Director’s intent to dissolve the corporation or notifying an extra-provincial corporation of the Director’s decision to cancel the registration of the extra-provincial corporation, and
(c) notifying a corporation of its dissolution or cancellation.
2023, c.2, s.129
Definition of “statement” and filing of articles or statement
186(1)In this section, “statement” means a statement of intent to dissolve and a statement of revocation of intent to dissolve referred to in section 138.
186(2)Where articles or a statement relating to a corporation are required to be sent to the Director, the Director shall, upon receipt of the articles or statement, any other required documents and the prescribed fee, unless otherwise specifically provided,
(a) record the date of filing,
(b) issue the appropriate certificate,
(c) file a copy of the certificate and relevant articles or statement,
(d) send to the corporation or its representative a copy of the certificate and relevant articles or statement, and
(e) publish in The Royal Gazette notice of the issue of the certificate, and the cost of the publication shall be paid by the incorporators or corporation.
186(2.1)The articles or statement referred to in subsection (1) shall be signed by a director or officer of the corporation or, in the case of articles of incorporation, by the incorporators.
186(2.2)Where articles or a statement referred to in subsection (2) are submitted in paper form, the person submitting the articles or statement shall, at the request of the Director, submit two copies of the articles or statement.
186(3)A certificate referred to in subsection (2) issued by the Director may be dated the day he receives the articles, statement or Court order pursuant to which the certificate is issued or any later day specified by the Court or person who signed the articles or statement.
186(4)Repealed: 2004, c.6, s.1
1985, c.39, s.1; 2004, c.6, art.1; 2023, c.2, s.155
Annual return
187(1)A corporation shall, on or before the last day of the month following the anniversary month of the corporation, send to the Director without notice an annual return in the form provided by the Director signed by a director or an officer of the corporation and the Director shall file it.
187(2)The Director shall furnish any person with a certificate certifying that a corporation has sent to the Director a document required to be sent to him under this Act.
1989, c.6, s.4; 2014, c.50, s.17; 2023, c.2, s.155
Alteration of documents
188The Director may alter a notice or document, other than an affidavit or statutory declaration, if so authorized by the person who sent the document or by his representative.
Correction of documents
2023, c.2, s.130
189(1) In this section, "document" means the articles or an application, certificate, notice, statement or other document in relation to a corporation, that is
(a) filed with the Director, or
(b) issued by the Director.
189(2)On providing notice to a corporation, the Director may correct an error in a document if the error was made by the Director or a person acting under the Director’s control.
189(3)If a document contains an error, the corporation shall, at the Director’s request, do the following so that the Director may correct the document:
(a) pass the resolutions and send the Director the documents required to comply with this Act;
(b) certify that there are reasonable grounds to believe that no shareholder or creditor will be prejudiced;
(c) certify that the correction will represent the original intention of the corporation or the incorporators, as the case may be; and
(d) take any other steps that the Director may reasonably require.
189(4)When the Director is of the opinion that shareholders or creditors would be prejudiced by a correction to a document under this section, the Director may refuse to issue a correction or refuse to file a corrected document.
189(5)If a document filed with the Director in relation to a corporation contains an error other than one referred to in subsection (2), the corporation or an interested person may apply to the Court for
(a) an order that the document be corrected, and
(b) an order determining the rights of the corporation’s shareholders or creditors.
189(6)Notice of application shall be served on the Director and, if the corporation is not the applicant, on the corporation and the Director, and the corporation may appear before the Court and be heard in person or by counsel.
189(7)For the purpose of correcting a document under this section, the Director may, at any time, demand the return of the original document and the person who possesses the original document shall, on receiving the Director’s demand, surrender it to the Director without delay.
189(8)After a document is corrected under this section, the Director may issue or file the corrected document.
189(9) A document corrected under this section shall bear the date of the document it replaces
(a) unless the correction is made with respect to the date of the document, in which case the document shall bear the corrected date, or
(b) in the case of a document corrected by an order of the Court, unless the Court decides otherwise.
189(10)If a corrected document materially amends the terms of the original document, the Director shall without delay publish a notice of the correction in the The Royal Gazette.
1990, c.45, s.1; 2023, c.2, s.131
Documents declared void by the Court
2023, c.2, s.132
189.1(1)A corporation, body corporate, interested person or the Director may make an application to the Court for a document sent to the Director or issued by the Director to be declared void, and the Court may make any order it sees fit, including
(a) an order declaring the document to be void, and
(b) an order rectifying the Director’s record to reflect the order.
189.1(2)A notice of application under subsection (1) shall be served on the Director and, if the body corporate is not the applicant, the body corporate and the Director, and the body corporate may appear before the Court and be heard in person or by counsel.
2023, c.2, s.132
Remedying corporate mistakes
2023, c.2, s.132
189.2(1)In this section, "corporate mistake" means an omission, defect, error or irregularity that has occurred in the conduct of the business or affairs of a corporation as a result of which
(a) a breach of a provision of this Act or the regulations has occurred,
(b) there has been default in compliance with the articles,
(c) proceedings at or in connection with any of the following have been rendered ineffective:
(i) a meeting of shareholders;
(ii) a meeting of the directors or of a committee of directors;
(iii) any assembly purporting to be a meeting referred to in subparagraph (i) or (ii), or
(d) an invalid resolution consented to by shareholders or directors, or invalid records purporting to constitute a resolution consented to by the shareholders or directors.
189.2(2)Despite any other provision of this Act, if a corporate mistake occurs,
(a) the Court may, either on its own motion or on the application of any interested person, make an order
(i) to correct or cause to be corrected, or to negate or modify or cause to be modified, the consequences in law of the corporate mistake, and
(ii) to validate an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of the corporate mistake, and
(b) the Court may make any ancillary or consequential orders that it considers appropriate.
189.2(3)The Court shall, before making an order under this section, consider the effect that the order might have on the corporation and on its directors, officers, creditors and shareholders and on the beneficial owners of its shares.
189.2(4)Unless the Court orders otherwise, an order made under subsection (2) does not prejudice the rights of any third party who acquired those rights
(a) for valuable consideration, and
(b) without notice of the corporate mistake that is the subject of the order.
189.2(5)A notice of application referred to in subsection (2) shall be served on the Director, and the Director may appear before the Court and be heard in person or by counsel.
2023, c.2, s.132
Validation of creation, allotment or issue of shares
2023, c.2, s.132
189.3(1)The creation, allotment or issue of shares by a corporation, including on the exercise of conversion privileges, options or rights attached to the shares, may be validated under this section if
(a) the creation, allotment or issue of those shares, or any of the terms of the allotment or issue of those shares, is inconsistent with
(i) a provision, applicable to the corporation, of this Act, or
(ii) the articles, or
(b) the creation, allotment or issue of those shares is otherwise invalid.
189.3(2)In a case to which subsection (1) applies, the Court, on the application of any person whom the Court considers to be an appropriate person to bring the application and on being satisfied that in all of the circumstances it is just and equitable to do so may make any order under subsection (3).
189.3(3)The Court may make an order
(a) that validates the creation, allotment or issue of the shares referred to in subsection (1),
(b) that confirms the terms of the allotment or issue of those shares as if the terms of the allotment or issue were consistent with a provision, applicable to the corporation, of this Act and the articles, and
(c) that it thinks, in the circumstances, is just and equitable.
189.3(4)A notice of application referred to in subsection (2) shall be served on the Director, and the Director may appear before the Court and be heard in person or by counsel.
189.3(5)When an order under this section requires a correction to the articles, the provisions of section 189 apply with the necessary modifications.
189.3(6)Before the Court makes an order under this section, the Court may require the approval of shareholders, security holders or creditors to the extent the Court views it is proper to obtain their approval.
189.3(7)The Court may, if it thinks fit, require an order be filed with the Director as it relates to the corporation.
2023, c.2, s.132
Examination and copies of documents
190(1)A person is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent to him under subsection 156(2), and upon payment of the prescribed fee, to make copies of or extracts therefrom.
190(2)The Director shall furnish any person with a copy or a certified copy of a document required by this Act or the regulations to be sent to the Director, except a report sent to him under subsection 156(2).
Records of Director, six year limitation
191(1)All documents filed with the Director may be 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.
191(2)Documents required by this Act to be filed and records required by this Act to be prepared and maintained by the Director may be 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.
191(3)Where documents filed with the Director or records maintained by the Director are maintained other than in written form,
(a) the Director shall furnish any copy required to be furnished under subsection 190(2) in intelligible written form; and
(b) a report reproduced from such documents or records, if it is certified as correct by the Director, is, without proof of the office or signature thereof, admissible in evidence to the same extent as the original written documents or records would have been.
191(4)The Director is not required to produce any document or record where a copy of that document or record is furnished in compliance with paragraph (3)(a).
191(5)The Director is not required to produce any document or record, other than a certificate and relevant articles or statement filed under section 186, after six years from the date he receives it.
1987, c.6, s.5; 2004, c.6, s.1
Access to records
2023, c.2, s.133
191.1(1) The Director may, for a prescribed fee, make available to the public by electronic means, under the terms and conditions established by the Director, a copy of any document filed by or with the Director or records maintained by the Director.
191.1(2)When a document is filed with and maintained by the Director in photographic film form, public access to the document shall be made by providing copies or certified copies.
191.1(3)Subject to this section, the Director may
(a) if the records contain personal information, provide copies and certified copies of documents in accordance with this Act and regulations,
(b) provide electronic access to documents in accordance with this section, and
(c) provide electronic access to a summary or extract of the relevant information from documents or records in accordance with this section.
191.1(4)If this section is inconsistent with or in conflict with any provision of the Right to Information and Protection of Privacy Act, this section prevails.
2023, c.2, s.133
Definition of “charter” and continuance of corporation
2023, c.2, s.155
192(1)In this section
“charter” includes
(a) an Act of incorporation and any amendments thereto; and
(b) letters patent of incorporation and any letters patent supplementary thereto.
192(2)The shareholders of any body corporate incorporated or continued by or under the laws of the Province who are entitled to vote at annual meetings of shareholders may, notwithstanding any provision in any other Act or any provision in the charter of the body corporate,
(a) by special resolution, authorize the directors of the body corporate to apply under section 126 for a certificate of continuance; and
(b) by the same resolution, make any amendment to the charter of the body corporate that a corporation incorporated under this Act may make to its articles.
192(3)Notwithstanding subsection (2), the shareholders of a body corporate may not, by a special resolution under that subsection, make any change of the nature referred to in subsection 113(1) that affects a class or series of shares unless
(a) the charter of the body corporate otherwise provides for an amendment of the nature referred to in paragraph 113(1)(e); or
(b) the holders of the class or series of shares approve the change in accordance with section 115.
192(4)The directors of a body corporate incorporated or continued under the laws of the Province, notwithstanding any provision in the charter of the body corporate, may apply under section 126 for a certificate of continuance where the articles of continuance do not make any amendment to the charter of the body corporate other than an amendment required to conform to this Act.
192(5)A shareholder is not entitled to dissent under section 131 in respect of an amendment made under subsection (2), (3) or (4).
192(6)Upon the coming into force of this Act, no body corporate, the incorporation or continuation of which is provided for in this Act, shall be incorporated or continued under the Companies Act.
1983, c.15, s.24; 2023, c.2, s.134; 2023, c.2, s.155
XVII
EXTRA-PROVINCIAL CORPORATIONS
2023, c.2, s.155
Definitions
193In this Part,
“agent for service” means the individual resident in New Brunswick who, or the corporation incorporated or continued under this Act that, according to the Director’s records,(représentant pour fin de signification)
(a) consents to act as an extra-provincial corporation’s agent for service, and
(b) is appointed under this Part;
“anniversary mont