1(1)In this Act

1(2)For the purposes of this Act

1(3)For the purposes of this Act, a body corporate shall be deemed to be controlled by a person if

1(4)A body corporate is the holding body corporate of another if that other body corporate is its subsidiary.

1(5)For the purposes of this Act, a body corporate shall be deemed to be a subsidiary of another body corporate if

1(6)For the purposes of this Act, a person shall be deemed to own beneficially securities that are beneficially owned by a body corporate controlled by the person or by an affiliate of such a body corporate.

1(7)For the purposes of this Act, where a person or group of persons owns beneficially, directly or indirectly, shares of a body corporate, that person or group of persons shall be deemed to own beneficially that proportion of shares of every other body corporate that is owned beneficially, directly or indirectly, by the first-mentioned body corporate, that is equal to the proportion of shares of the first-mentioned body corporate that is owned beneficially, directly or indirectly, by that person or group of persons.

3(1)Every body corporate referred to in paragraph 2(b) shall, within one year after the commencement of this Act,

3(2)A body corporate referred to in paragraph 2(b) and for which letters patent of continuance, a certificate referred to in subsection 4(2) or a certificate of discontinuance has not been issued under this Act within one year after the commencement of this Act shall be dissolved upon the expiry of that period and shall not be revived and the Minister may issue a certificate acknowledging or confirming the dissolution, which certificate shall be dated the date of dissolution.

3(3)When a body corporate is dissolved under subsection (2), sections 173 to 176 apply with the necessary modifications as if the body corporate were a provincial company under those sections.

4(1)Every body corporate referred to in paragraph 2(b) that was not licensed under the Trust, Building and Loan Companies Licensing Act immediately before the commencement of this Act may, with the consent of the Minister, apply to the appropriate official or public body of any other jurisdiction requesting that it be continued as if it had been incorporated under the laws of that jurisdiction.

4(2)Upon receipt of notice satisfactory to the Superintendent that a body corporate referred to in subsection (1) has been continued under the laws of another jurisdiction, the Superintendent shall file the notice and the Minister shall issue a certificate acknowledging or confirming that continuance outside New Brunswick.

4(3)This Act and any other Act of the Legislature cease to apply to the body corporate on the date shown in the certificate issued under subsection (2), which shall be dated the date upon which it is continued under the laws of another jurisdiction.

4(4)Notice of the issue of the certificate referred to in subsection (2) shall be published by the Superintendent in The Royal Gazette.

11(1)On application by one or more persons, the Minister may, subject to subsection (3) and with the approval of the Lieutenant-Governor in Council, issue letters patent incorporating a loan company or trust company.

11(2)Notwithstanding any other provision of this Act, letters patent incorporating a trust company may be issued restricting the purpose of the company to offering its services to the public to act as trustee, bailee, agent, executor, administrator, receiver, liquidator, assignee, guardian of a minor’s estate or representative under the Supported Decision-Making and Representation Act or to any of those purposes and restricting the company from receiving deposits from the public.

11(3)The Minister shall not issue letters patent under subsection (1) unless

11(4)Notwithstanding paragraphs (3)(a), (b) and (c), the Minister may, with the approval of the Lieutenant-Governor in Council, alter the stated capital account and capital base requirements set out in those paragraphs.

11(5)On application by a provincial company, duly authorized by special resolution, the Minister may, subject to subsections (6) and (7) and with the approval of the Lieutenant-Governor in Council, issue supplementary letters patent

11(6)The Minister shall not issue supplementary letters patent under paragraph (5)(a) or (b) unless the company meets the requirements for incorporating a loan or trust company, as the case may be, set out in subsection (3).

11(7)The Minister shall not issue supplementary letters patent under paragraph (5)(b) unless it is shown to the Minister’s satisfaction that arrangements have been made to transfer to another licensed trust company the business in relation to which the provincial trust company acted as a fiduciary and those arrangements are adequate to protect the persons in relation to which the provincial trust company acted in a fiduciary capacity.

11(8)Subsection (7) does not apply so as to require a trust company that has applied to continue as a loan company to transfer money received by it as deposits.

11(9)Supplementary letters patent issued under paragraphs (5)(a) or (b) may effect any change in the provisions of the existing instrument of incorporation of the provincial company

11(10)On application by a provincial company, duly authorized by a special resolution and subject to section 131, the Minister may issue supplementary letters patent to add, change or remove any provision that is permitted by this Act to be or that is set out in, the instrument of incorporation of a company, including, without limiting the generality of the foregoing, to

12(1)An application for letters patent or supplementary letters patent under section 11 shall be made to the Minister in the form prescribed by regulation for that application and shall be filed with the Superintendent.

12(2)No application for supplementary letters patent referred to in subsection 11(5) or (10) shall be made unless it has been authorized by a special resolution of the provincial company and the application has been filed with the Superintendent within three months after the time of the passing of the special resolution.

12(3)The directors of a company may, if authorized by the shareholders in the special resolution authorizing an application referred to in subsection (2), abandon the application without further approval of the shareholders.

12(4)An application for letters patent referred to in subsection 11(1) shall set out

12(5)An application for supplementary letters patent referred to in paragraph 11(5)(a) or (b) shall set out

12(6)An application for supplementary letters patent referred to in subsection 11(10) shall set out

13(1)The decision of the Minister to issue or not to issue letters patent or supplementary letters patent is final and not subject to appeal, but nothing in this subsection prevents an applicant from making a new application.

13(2)The Superintendent shall immediately notify the applicant in writing of the Minister’s decision referred to in subsection (1).

14(1)The letters patent of a provincial company shall set out the information referred to in paragraphs 12(4)(a) to (f) and may set out any provisions not contrary to this Act that the Minister considers advisable to take into account the particular circumstances of the company being incorporated.

14(2)Supplementary letters patent issued under subsection 11(5) or (10)

16(1)A provincial company comes into existence on the date shown in its instrument of incorporation.

16(2)The first directors of a provincial company shall be those named in its original instrument of incorporation.

16(3)The instrument of incorporation of a provincial company expires and ceases to be in force, except for the sole purpose of effecting the liquidation and dissolution of the company,

16(4)Supplementary letters patent become effective on the date shown in the supplementary letters patent.

16(5)No issue of supplementary letters patent under subsection 11(5) or (10) affects an existing cause of action or claim or liability to prosecution in favour of or against a company or its directors or officers or any civil, criminal or administrative action or proceeding to which a company is or its directors or officers are a party.

17(1)The words “Loan Corporation”, “Corporation de prêt”, “Loan Corp.”, “Société de prêt”, “Loan Company”, “Compagnie de prêt”, shall be included in the name of every provincial loan company, and the words “Trust Corporation”, “Corporation de fiducie”, “Trust Corp.”, “Trust Company”, “Compagnie de fiducie”, “Trust Co.”, “Trustco”, “Trustee Corporation”, “Corporation fiduciaire”, “Trustee Corp.”, “Compagnie fiduciaire”, “Trustee Company” or “Société fiduciaire” shall be included in the name of every provincial trust company but, notwithstanding its legal name, a company may use and may be legally designated by either the full or the abbreviated form of those words.

17(2)The Superintendent may exempt a body corporate continued under this Act from the provisions of subsection (1).

17(3)Subject to subsection 19(1), the instrument of incorporation may set out the name of the company 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, but where the name is set out in an English form and a French form or in a combined English and French form, the company may use and may be legally designated by any one of those forms.

17(4)Subject to subsection 19(1), the instrument of incorporation may, for use outside Canada, set out the name of the company in any language form and it may use and may be legally designated by its name in any such form outside Canada.

17(5)A provincial company shall, in accordance with this section, 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 company.

17(6)Subject to subsection (5), a provincial company may carry on business under or identify itself by a name other than its corporate name if it has registered a business name under the Partnerships and Business Names Registration Act.

19(1)A provincial company shall not be incorporated or continued with a name or be given a name upon application to change its name

19(2)If, through inadvertence or otherwise, a provincial company

19(3)When a provincial company has been directed under subsection (2) to change its name and has not within sixty days after the service of the directive to that effect changed its name to a name that complies with this Act, the Superintendent may revoke the name of the company and assign to it a name and, until changed in accordance with subsection 11(10), the name of the company is thereafter the name so assigned.

19(4)When a provincial company gives an undertaking to change its name and does not carry out the undertaking or dissolve within the time specified, the Superintendent may, after giving the company an opportunity to be heard, revoke the name of the company and assign to it a name and, until changed in accordance with subsection 11(10), the name of the company is thereafter the name so assigned.

19(5)When a person who is not a provincial company 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 Superintendent may, after giving the company that acquired the name by virtue of the undertaking an opportunity to be heard, revoke the name of the company and assign to it a name and, until changed in accordance with subsection 11(10) the name of the company is thereafter the name so assigned.

22(1)Unless otherwise provided in this Act, it is not necessary for a by-law to be passed in order to confer any particular power on a provincial company or its directors.

22(2)A provincial company shall not carry on any business or exercise any power that it is restricted by its instrument of incorporation from carrying on or exercising, nor shall the company exercise any of its powers in a manner contrary to its instrument of incorporation.

22(3)No act of a provincial company, including any transfer of property to or by a company, is invalid by reason only that the act or transfer is contrary to its instrument of incorporation.

22(4)No person is affected by or shall be deemed to have notice or knowledge of the contents of a document concerning a provincial company by reason only that the document is available for inspection at an office of the company or has been filed with the Superintendent.

24(1)A provincial company may at any time, and shall when reasonably so directed by the Superintendent, apply for restated letters patent.

24(2)An application for restated letters patent shall be made to the Minister in the form prescribed by regulation and shall be filed with the Superintendent.

24(3)Upon receipt of the application, the Minister shall issue restated letters patent.

24(4)Restated letters patent are effective on the date shown in the restated letters patent and supersede the original instrument of incorporation and all amendments to it.

25(1)An extra-provincial company that is carrying on the business of a loan or trust company may apply to the Minister, in accordance with section 12, for letters patent of continuance continuing it as if it had been incorporated under section 11.

25(2)On application by a company referred to in subsection (1), the Minister may, subject to subsections 11(3) and (7) and with the approval of the Lieutenant-Governor in Council, issue letters patent of continuance continuing the company as a loan company or trust company, as the case may be.

25(3)Letters patent of continuance may be issued in respect of a company only if it is authorized under the laws of Canada or the province or territory of Canada in which it was incorporated to apply for letters patent continuing it as if it had been incorporated under an Act of the Legislature.

25(4)When letters patent of continuance are issued, the Superintendent shall send a notice of the issue of the letters patent to the appropriate official or public body of the jurisdiction in which the company was incorporated.

26(1)A loan company or trust company or any other body corporate authorized to execute the office of executor, administrator, trustee, guardian of a minor’s estate or committee of a mentally incompetent person’s estate, incorporated under a special or general Act of the Legislature before the commencement of this Act may, if it is duly authorized by special resolution, apply to the Minister in accordance with section 12, for letters patent of continuance continuing it as if it had been incorporated under section 11.

26(2)On application by a company or any other body corporate referred to in subsection (1) the Minister may, subject to subsections 11(3) and (7), issue letters patent of continuance continuing the company as a loan company or trust company, as the case may be.

27(1)On the date shown in the letters patent of continuance issued in respect of a body corporate under section 25 or 26

27(2)When a body corporate is continued as a provincial company under section 25 or 26

27(3)Letters patent of continuance issued under section 25 or 26 may effect any change in the existing instrument of incorporation of the company being continued

27(4)Sections 11 to 16 apply with the necessary modifications to an application for letters patent of continuance under section 25 or 26 as if it were an application for letters patent or supplementary letters patent, as the case may be, under section 11.

28(1)Subject to subsection (8), a provincial company may, if it is authorized by the shareholders in accordance with this section, and it establishes to the satisfaction of the Minister that its proposed continuance in another jurisdiction will not adversely affect creditors, shareholders or depositors of the company or persons for whom the company acts in a fiduciary capacity, apply to the appropriate official or public body of another jurisdiction in Canada requesting that the company be continued as if it had been incorporated under the laws of Canada or a province or territory of Canada other than New Brunswick, as the case may be.

28(2)Each share of the company carries the right to vote in respect of a continuance whether or not it otherwise carries the right to vote.

28(3)An application for continuance under subsection (1) becomes authorized when the shareholders voting on it have approved of the continuance by a special resolution.

28(4)The directors of a company 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.

28(5)Subject to subsection (1), upon receipt of notice satisfactory to the Superintendent that the company has been continued under the laws of another jurisdiction, the Superintendent shall file the notice and the Minister shall issue a certificate of discontinuance.

28(6)This Act and any special Act of the Legislature incorporating the company or body corporate cease to apply to the company or body corporate on the date shown in the certificate of discontinuance, which shall be dated the date upon which the company or body corporate is continued under the laws of another jurisdiction.

28(7)Notice of the issue of the certificate of discontinuance shall be published by the Superintendent in The Royal Gazette.

28(8)A provincial company 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

29(1)A provincial company may, with the approval in writing of the Minister, apply to the Director appointed under the Business Corporations Act for a certificate of continuance under section 126 of that Act.

29(2)The Minister shall not give approval under subsection (1) unless satisfied that

29(3)Section 192 of the Business Corporations Act applies with the necessary modifications to an application referred to in subsection (1).

29(4)On the date shown in the certificate of continuance issued under section 126 of the Business Corporations Act, that Act applies and this Act and any special Act of the Legislature incorporating the company or the body corporate cease to apply to the corporation thereby continued.

29(5)Upon receipt of notice satisfactory to the Minister that the company has been continued under the Business Corporations Act, the Minister shall issue a certificate of discontinuance which shall be dated the date shown in the certificate of continuance referred to in subsection (4).

30(1)On or after the day on which a provincial company is incorporated under this Act, a meeting of the directors shall be held at which they may, subject to this Act,

30(2)An applicant for letters patent incorporating a provincial company or a director named in the letters patent may call the meeting of the directors referred to in subsection (1) by giving not less than five days notice of the meeting to each director, stating the time and place of the meeting.

31(1)When the minimum amount of capital required by this Act has been received from the issue of its shares by a provincial company incorporated under this Act, the directors shall call a meeting of the shareholders of the company in accordance with the procedure set out in section 124.

31(2)The shareholders of a company shall, by ordinary resolution at the meeting of shareholders referred to in subsection (1)

31(3)An auditor appointed under paragraph 30(1)(e) is eligible for appointment under subsection (2).

31(4)A director named in the letters patent of a provincial company holds office until the election of directors at the meeting of shareholders referred to in subsection (1).

33(1)A licensed provincial company shall adhere to prudent investment standards in making investment decisions.

33(2)For the purposes of this Act, prudent investment standards are those that would be applied by a person exercising the judgment and care that a person of prudence, discretion and intelligence would exercise as a trustee of the property of others.

34(1)A licensed provincial company may, for the purpose of investment, receive money

34(2)Money received by a company under subsection (1) shall be deemed to be held in trust for its depositors and the company shall be deemed to guarantee the repayment of the money.

34(3)Notwithstanding subsection (2), a company may retain the interest and profit resulting from the investment of money received under subsection (1) except the amount of interest payable to the depositor in respect of that money.

34(4)Every company receiving money as authorized by subsection (1) shall earmark and set aside, in respect of the money received, securities or cash and securities equal to the full aggregate amount of the money received, and for the purposes of this subsection, “cash” includes money on deposit and “securities” includes investments authorized under sections 41 to 45 and 49.

34(5)A debenture, investment certificate or other evidence of money received issued by a provincial company shall indicate that it is guaranteed only as against the assets of the company earmarked and set aside under subsection (4).

35(1)No licensed provincial company shall receive money as a deposit unless the company is a member institution within the meaning of the Canada Deposit Insurance Corporation Act, chapter C-3 of the Revised Statutes of Canada, 1970, or the deposit is insured by some other public agency approved by the Minister.

35(2)A company may, with the approval of the Minister, borrow money from the Canada Deposit Insurance Corporation or other similar public agencies approved by the Minister, and for such purposes, the company may mortgage the cash and securities earmarked and set aside under section 34.

36(1)Subject to subsections (2), (3) and (4), the total amount received as deposits and borrowed by a licensed provincial company shall not exceed at any time an amount equal to ten times its capital base.

36(2)Amounts borrowed by a licensed provincial company by way of subordinated notes and by way of mortgages on real estate owned by the company shall not be included in a determination of a total amount under subsection (1).

36(3)On the application of a licensed provincial company, the Superintendent may, by order and subject to such terms and conditions as may be set out in that order, increase the total amount that may be borrowed or received by the company to an amount equal to such multiplier in excess of ten times but not exceeding twenty-five times its capital base as may be set out in the order and subsections (1) and (2) shall be deemed to apply to that increased amount, substituting the new multiplier for “ten” in subsection (1).

36(4)A licensed provincial company may exceed at any time the limit on its borrowing multiple as set out in subsection (1) or in an order under subsection (3) if the board of directors has approved, by a resolution passed on an annual basis, the exceeding of the limit if the amount by which the limit is exceeded is invested in accordance with the investment standards prescribed by regulation.

36(5)No order shall be made under subsection (3) unless the application of the company is accompanied by a certified copy of the special resolution of the company supporting the increase requested under subsection (3).

36(6)At least once each year the Superintendent or a person designated by the Superintendent may review the borrowing multiple authorized for each company to determine if the borrowing multiple is appropriate.

36(7)The Superintendent may at any time, having given a licensed provincial company an opportunity to be heard, reduce the limit on its borrowing multiple authorized under this section, that the company may receive by way of deposit or borrow to any amount, including a multiplier that is less than ten times its capital base.

37(1)A licensed provincial company may borrow money by way of the issue of subordinated notes having a denomination of at least one hundred thousand dollars.

37(2)A subordinated note issued under this section is subject to the following provisions:

37(3)A subordinated note shall be evidenced by a certificate in a form approved for the company by the Superintendent and containing a statement of the terms set out in paragraphs (2)(a) and (b) and such other information as the Superintendent may require.

37(4)A subordinated note shall not be issued by a licensed provincial company except on application to the secretary of the company.

37(5)No licensed provincial company or person acting on its behalf, in any offering circular, advertisement, correspondence or literature relating to a subordinated note issued or to be issued by the company, shall refer to the note otherwise than as a subordinated note and the company or person, as the case may be, shall indicate clearly therein that the money borrowed by way of the issue of the subordinated note is not a deposit that is insured by the Canada Deposit Insurance Corporation or other similar public agency.

37(6)No licensed provincial company shall issue a subordinated note if, after the issue of the note, the amount of the outstanding subordinate notes of the company would exceed the amount obtained by subtracting its outstanding subordinated notes and the subordinate note or notes it proposes to issue from its capital base.

38(1)A licensed provincial company may pledge any of its own assets as security for a debt obligation of the company if the debt obligation is issued in respect of money borrowed to enable the company to meet short term requirements for liquid funds arising from its operations and if the total debt obligation of the company in relation to which assets are so pledged does not exceed fifty per cent of the capital base.

38(2)Subsection (1) does not apply so as to prevent a pledge of assets to the government of Canada with respect to the sale of Canada Savings Bonds or any other transactions as may be prescribed by regulation.

38(3)A company pledging any asset under subsection (1) shall immediately notify the Superintendent in writing of the amount so secured and of the nature of the asset pledged as security.

38(4)A licensed provincial company shall not borrow money except from a bank or a licensed company unless

38(5)Except with respect to assets pledged as security under subsection (1) or (2), any agreement under which a creditor of a licensed provincial company is authorized to appoint a receiver or acquire control of the company or of any asset of the company by reason of the failure of the company to make payment in respect of a debt obligation is void.

38(6)A licensed provincial company shall not pledge any of its assets to a restricted party of the company.

40(1)Notwithstanding any other provision of this Act, a licensed trust company shall, with respect to funds held by it as a fiduciary, other than deposits, adhere to the prudent investment standards set out in section 33 with respect to those funds.

40(2)No licensed provincial company shall, with respect to its total assets, participate in or enter into any investment or pledge any of those assets except in accordance with sections 41 to 51.

40(3)Notwithstanding subsection (2), a licensed provincial company shall, with respect to its total assets, adhere to the prudent investment standards set out in section 33 with respect to its total assets.

40(4)No licensed provincial company shall purchase, directly or indirectly,

41(1)A licensed provincial company may invest by way of purchase of or loans on the security of

41(2)A licensed provincial company may invest

41(3)A licensed provincial company shall not make investments

42(1)A licensed provincial company may, by way of purchase, invest in improved real estate in Canada for the production of income.

42(2)The total book value on a gross basis of all investments in real estate under this section and section 43, whether by a company or by a subsidiary of the company, shall not exceed ten per cent of the total assets of the company and not more than one per cent of the total assets of the company may be invested in any one parcel of real estate purchased under this section.

43(1)Subject to subsection 42(2), a licensed provincial company may by way of purchase invest in improved real estate in Canada that is or is to be occupied by the company for its own use.

43(2)For the purposes of this section, real estate purchased by a subsidiary of a licensed provincial company that is occupied and used by the subsidiary for either or both its own purposes and the purposes of the company shall be deemed to be real estate purchased by the company under this section.

44(1)The book value of real estate that has been mortgaged to a company or any of its subsidiaries and that has been acquired by the company or the subsidiary to protect its investment and of real estate that has been conveyed to it or any of its subsidiaries in satisfaction of debts previously contracted in the course of the company’s business or that of the subsidiary need not be included in determining total book value of real estate for the purposes of subsection 42(2).

44(2)Where real estate has been mortgaged to a company or any of its subsidiaries and the real estate has been acquired by the company or the subsidiary to protect its investment, the company or subsidiary may sell the real estate and take back a mortgage of it even though the mortgage does not satisfy the requirements of paragraph 41(1)(a).

45(1)A licensed provincial company may, by way of purchase or loan, make investments not authorized by sections 41 to 43 if the investment is not prohibited under any other provision of this Act or the regulations but the total book value of investments made under this section and held by the company shall not exceed five per cent of the total assets of the company.

45(2)Subsection (1) does not apply so as to

45(3)Where a company is authorized by its licence to make the class of investments set out in paragraph 41(2)(b) or (c) or subparagraph 41(2)(d)(i) or (ii), the company shall not make any such investments under subsection (1).

46(1)Notwithstanding any other provision of this Act, a licensed provincial company shall, at all times, except where the Minister has approved the purchase of shares under section 156, maintain at least fifty per cent of its total assets, excluding assets of subsidiaries, in

46(2)Investments by a licensed provincial company in third and subsequent mortgages shall be limited to two per cent of the total assets of the company.

46(3)For the purposes of subsection (2), an investment in a third or subsequent mortgage by a subsidiary of a licensed provincial company shall be deemed to be an investment in the mortgage by the company.

46(4)No licensed provincial company shall make an investment in securities of a corporation, if after the investment, its holdings of securities of all corporations carried on its books would exceed twenty-five per cent of its total assets.

46(5)For the purposes of subsection (4), an investment in shares, bonds or debentures by a subsidiary of a licensed provincial company other than a mutual fund or securities dealer subsidiary shall be deemed to be an investment by the company.

47(1)No licensed provincial company shall directly or indirectly

47(2)Paragraph (1)(a) does not apply so as to restrict investments in

47(3)For the purposes of this section, a person is associated with

48(1)Subject to such terms and conditions concerning subsidiaries as may be prescribed by regulation, a licensed provincial company may establish or acquire as a subsidiary

48(2)A subsidiary described in subsection (1) shall not invest its funds except as provided for licensed provincial companies in this Act.

48(3)Subsection (2) does not apply to a subsidiary described in paragraph (1)(c) if the company satisfies all terms and conditions imposed by the Minister or the regulations.

48(4)A licensed company shall not make an investment in or guarantee any obligation of a subsidiary of the company if after the making of the investment or the giving of the guarantee the total book value of all of those investments and guarantees will exceed five per cent of the total assets of the company.

48(5)Subsection (4) does not apply to

52(1)Notwithstanding this or any other Act, every licensed provincial trust company may, unless the trust instrument otherwise directs, invest money held by it as a fiduciary, other than deposits, in one or more common trust funds of the trust company.

52(2)No licensed provincial trust company shall include in a common trust fund authorized under subsection (1) any money in relation to a trust established exclusively for savings plans registered under the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952.

52(3)No licensed provincial trust company shall establish or operate a common trust fund except as provided for in the regulations.

52(4)A licensed provincial trust company may, at any time, and shall, when required in writing by the Superintendent to do so under subsection (5), file with the Superintendent and pass an account of its dealings with respect to a common trust fund in the Court and the Court, on the passing of the account, has, subject to this section, the same duties and powers as The Probate Court of New Brunswick would have in the case of the passing of personal representatives’ accounts.

52(5)An account filed with the Superintendent in accordance with the regulations, except so far as mistake or fraud is shown, is binding and conclusive upon all interested persons as to all matters shown in the account and as to the trust company’s administration of the common trust fund for the period covered by the account, unless within six months after the date upon which the account is so filed, the Superintendent requires in writing that the account be filed and passed in the Court.

52(6)Notwithstanding any other Act or law, a licensed provincial trust company shall not be required to render an account of its dealings with a common trust fund except as provided in this section or the regulations.

52(7)Upon the filing of an account under this section, the Court shall fix a time and place for the passing of the account, and the trust company shall cause a written notice of the appointment and a copy of the account to be served upon the Superintendent at least fourteen days before the date fixed for the passing, and the trust company shall not be required to give any other notice of the appointment.

52(8)For the purposes of an accounting under this section, an account may be filed in the form of audited accounts filed with the Superintendent in accordance with the regulations.

52(9)Upon the passing of an account under this section, the Superintendent shall represent all persons having an interest in the funds invested in the common trust fund, but any interested person is entitled at his own expense to appear and be heard in person or to be separately represented.

52(10)Where an account filed under this section has been approved by the Court, the approval, except so far as mistake or fraud is shown, is binding and conclusive upon all interested persons as to all matters shown in the account and as to the trust company’s administration of the common trust fund for the period covered by the account.

52(11)The costs of passing an account under this section shall be charged to principal and income of the common trust fund in such proportions as the Court considers proper.

53(1)No licensed provincial trust company or subsidiary of a licensed provincial trust company shall promote or operate a mutual fund unless

53(2)No licensed provincial company or subsidiary of a licensed provincial company shall be registered under the Securities Act or the regulations under that Act unless the company or subsidiary has received the approval of the Superintendent and the company or subsidiary complies with any terms or conditions imposed with respect to the approval by the Superintendent.

53(3)Where a prospectus for which a receipt has been issued is required under the Securities Act in order to trade in a security, no provincial company shall trade in its securities where that trade would be in the course of a primary distribution to the public of its securities unless the company has received the approval of the Superintendent.

54(1)The liability of a trust company to persons interested in an estate held by the trust company as executor, administrator, trustee, receiver, liquidator, assignee, guardian or representative is the same as if the estate had been held by an individual in the like capacity, and the company’s powers are the same.

54(2)Where a licensed trust company is authorized by a licence issued under this Act to execute the office of executor, administrator, trustee, receiver, liquidator, assignee, guardian or representative, every court or judge having authority to appoint such an officer may, with the consent of the company, appoint the company to exercise any of those offices in respect of any estate or person under the authority of that court or judge, or may grant to the company probate of any will in which the company is named as an executor.

54(3)A licensed trust company

54(4)Notwithstanding any rule, practice or statutory provision, it is not necessary for a licensed trust company to give any security for the due performance of its duty as executor, administrator, trustee, receiver, liquidator, assignee, guardian or representative unless so ordered by the court or judge.

54(5)No court or judge shall appoint any body corporate other than a licensed trust company to execute the office of executor, administrator, trustee, guardian or representative.

55(1)A licensed company is not bound to see to the execution of any trust, whether express, implied or constructive, to which any of its deposits are subject, other than a trust to which the company is a party.

55(2)The receipt of the person in whose name any deposit stands in the books of a licensed company is a sufficient discharge to the company for any payment made in respect of the deposit, and a direction to transfer, signed by the person in whose name any such deposit stands in the books of the company, is sufficient authority to the company for any transfer made in respect of the deposit, notwithstanding any trust to which the same may then be subject and whether the company has or has not had notice of the trust.

55(3)A company is not bound to see to the application of any money paid upon a receipt under subsection (2).

56(1)A provincial company shall at all times have a registered office in the place within New Brunswick specified in its instrument of incorporation.

56(2)The directors of a provincial company may change the place of the registered office by applying for supplementary letters patent under subsection 11(10).

56(3)The directors of a provincial company may change the address of the registered office within the place specified in the instrument of incorporation.

56(4)A provincial company shall file with the Superintendent, within fifteen days after any change of address of its registered office, a notice in the form prescribed by regulation.

57(1)A provincial company shall prepare and maintain at its registered office or at any other place in New Brunswick designated by the directors and approved by the Superintendent, records containing

57(2)In addition to the records described in subsection (1), a provincial company shall prepare and maintain

57(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.

57(4)The records described in subsection (2) shall be kept at the registered office of the provincial company or at any other place the directors think fit and that is approved by the Superintendent.

58(1)The directors and shareholders of a provincial company, their agents, their legal representatives and the Superintendent or Minister may examine the records referred to in subsection 57(1) during the usual business hours of the company without charge.

58(2)A shareholder of a provincial company is entitled upon request and without charge to one copy of the instrument of incorporation and by by-laws and amendments to them.

58(3)A creditor of a provincial company or a judgment creditor of a shareholder and any agent or legal representative of that creditor or judgment creditor may examine the records referred to in paragraphs 57(1)(a), (c) and (d) during the usual business hours of the company upon payment of a reasonable fee and may make copies of those records.

58(4)The directors of a provincial company and the Superintendent or Minister may examine the records referred to in subsection 57(2) during the usual business hours of the company without charge.

59(1)All registers, financial statements and other records required by this Act or the regulations 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.

59(2)A provincial company and its agents shall take reasonable precautions to

59(3)A person who without reasonable cause violates this section commits an offence.

59(4)An instrument or agreement executed on behalf of a provincial company by a director, an officer or an agent of a company is not invalid merely because a corporate seal is not affixed to it.

61(1)A provincial company shall prepare annually for the information of the Superintendent an annual return, in the form or forms provided by the Superintendent, outlining the financial condition and affairs of the company for the financial year of the company and the return shall be filed with the Superintendent within ninety days after the end of the period to which it relates.

61(2)The return referred to in subsection (1) shall have attached to it the financial statements for the year to which the annual return relates.

61(3)The return referred to in subsection (1) shall have attached to it a report of the auditor.

61(4)The return referred to in subsection (1) shall be accompanied by a certified copy of a resolution of the directors showing that the return was approved by them.

64(1)A provincial company shall, within fifteen days after each annual meeting, make a return to the Superintendent showing

64(2)Where any information relating to a director of a provincial company shown in the latest return made to the Superintendent under subsection (1), other than information referred to in paragraph (1)(b), becomes inaccurate or incomplete or a vacancy in the board of directors of the company occurs or is filled, the company shall immediately file with the Superintendent notice in the form prescribed by regulation.

68(1)The Superintendent shall maintain a file on each licensed company which shall contain such information as may be prescribed by regulation.

68(2)Upon payment of the fee prescribed by regulation, any person, during usual office hours, may examine the registers referred to in section 216 and the file referred to in subsection (1) and may take extracts from, or obtain copies of, the registers and the file.

70(1)Shares of a provincial company may be with nominal or par value or without nominal or par value or of both kinds.

70(2)A provincial company shall have one class of shares in which the rights of the holders of those shares are equal in all respects and include the rights

70(3)The instrument of incorporation of a provincial company may provide for classes of shares in addition to those referred to in subsection (2), and if it so provides, the rights, privileges, restrictions and conditions attaching to the shares of each class shall be set out in the instrument of incorporation but those shares shall not be designated as common shares or by words of like import.

70(4)No class of shares shall be designated as preference shares or by words of like import unless that class has attached to it a preference or right over some other class of shares.

70(5)The shares of a company are personal property.

70(6)Subject to subsection 71(2), shares issued by a provincial company shall be fully paid in Canadian currency and are non-assessable and the holders are not liable to the company or to its creditors in respect of those shares.

71(1)Subject to this Act and the instrument of incorporation, shares of a provincial company may be issued at such times, to such persons and for such consideration as the directors may determine.

71(2)No share of any class of shares of a provincial company shall be issued until it is fully paid for in money unless that share is issued

71(3)Where shares of any class of shares of a provincial company have a nominal or par value, the company shall not issue those shares

71(4)Where shares of any class of shares of a provincial company are without nominal or par value, the company shall not issue those shares if, after the issue,

71(5)On the issue of a share, a provincial company 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.

72(1)A provincial company shall maintain a separate stated capital account for each class and series of shares it issues.

72(2)A provincial company shall add to the appropriate stated capital account the full amount of any consideration it receives for any shares it issues with or without par value including the full amount of any consideration it receives in excess of the par value for any shares it issues with par value.

72(3)A body corporate continued under this Act

72(4)When a body corporate is continued under this Act, subsection (2) does 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 body corporate is so continued.

72(5)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.

72(6)A company shall not reduce its stated capital or any stated capital account except in the manner provided in this Act.

73(1)The instrument of incorporation may authorize the issue of any class of shares other than common shares in one or more series and may authorize the directors to fix the number of shares in, and to determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series, subject to the limitations set out in the instrument of incorporation.

73(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.

73(3)No rights, privileges, restrictions or conditions attached to a series of shares shall confer on 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.

73(4)Before the issue of shares of a series authorized under this section, the directors shall send to the Minister an application for supplementary letters patent in the form prescribed by regulation to designate a series of shares.

73(5)Upon receipt of an application for supplementary letters patent designating a series of shares, the Minister shall issue supplementary letters patent.

74(1)In this section

74(2)Except as otherwise provided in the instrument of incorporation and except as provided in this section, the holders of equity shares of any class, in the case of the proposed issuance by the provincial company of, or the proposed granting by the company of rights or options to purchase, its equity shares of any class of 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.

74(3)Except as otherwise provided in the instrument of incorporation and except as provided in this section, the holders of voting shares of any class, in the case of the proposed issuance by the provincial company of, or the proposed granting by the company of rights or options to purchase, its voting shares of any class, or any shares 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.

74(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 provincial company.

74(5)In case each of the shares entitling the holders of the shares 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.

74(6)The apportionment made by the board shall, in the absence of fraud or bad faith, be binding upon all shareholders.

74(7)Notwithstanding subsection (2) or (3), a shareholder has no preemptive right in respect of shares to be issued

75(1)Subject to sections 71 and 74 and in accordance with the requirements of subsection (7) concerning the consideration payable for converted shares on the exercise of any outstanding options or rights issued under subsection (3), a provincial company may issue certificates, warrants or other evidences of conversion privileges and shall set out the conditions of those privileges

75(2)Conversion privileges may be made transferable or non-transferable.

75(3)Subject to sections 71 and 74, a provincial company may issue options or rights to acquire shares of the company to

75(4)Subject to subsection (5), no option or right issued under subsection (3) may be transferred or transmitted.

75(5)Where the holder of an option or right issued under subsection (3) dies, becomes bankrupt or has a representative appointed under the Supported Decision-Making and Representation Act, the option or right vests in the administrator of the holder’s estate, trustee in bankruptcy or appointed representative for a period of two years after the date of death, bankruptcy or appointment, at the end of which period the option or right lapses.

75(6)Where shares subject to an option or right issued under subsection (3) are split or consolidated into a greater or lesser number of similar shares, the holder of the option or right is entitled, after completion of the split or consolidation, to a proportionately greater or lesser number of shares at a proportionately lesser or greater consideration per share.

75(7)Where shares subject to an option or right issued under subsection (3) are converted to an equal, greater or lesser number of different shares, the holder of the option or right is entitled, after completion of the conversion, to the same or a proportionately greater or lesser number of the different shares, and the consideration payable for that number of different shares is the consideration set for the unconverted shares under the option agreement.

75(8)The Minister may specify the manner in which the options or rights may be issued under subsection (3), the maximum number of options and rights that may be so issued and any conditions attaching to such options or rights.

75(9)Where a provincial company has granted privileges to convert any securities issued by the company into shares, or into shares of another class or series, or has issued or granted options or rights, whether conditional or unconditional, to acquire shares, the company shall reserve sufficient authorized shares to meet the exercise of such conversion privileges, options and rights.

77(1)Except as provided in this section or section 78, a provincial company shall not purchase, redeem or otherwise acquire shares issued by it.

77(2)Where the instrument of incorporation of a provincial company authorizes it to issue redeemable shares, the company may, subject to subsection (4), redeem such shares at prices not exceeding the redemption price stated in the terms of issue.

77(3)Subject to subsection (4), a provincial company may purchase or otherwise acquire shares issued by it to

77(4)A provincial company shall not make any payment to purchase or redeem or otherwise acquire shares issued by it if there are reasonable grounds for believing that

78(1)Notwithstanding section 77 but subject to section 131, a provincial company may, by special resolution, reduce the stated capital of the company.

78(2)A company shall not reduce its stated capital under subsection (1) if there are reasonable grounds for believing that

78(3)A special resolution under this section has no effect until it is approved in writing by the Minister.

78(4)No approval shall be given by the Minister under subsection (3) unless application for the approval is made within three months after the time of the passing of the special resolution.

78(5)A special resolution under this section shall specify the stated capital account or accounts from which the reduction of capital effected by the special resolution will be deducted.

78(6)In addition to evidence of the passing of the special resolution under this section, statements showing in respect of the company

78(7)Nothing in this section shall be construed to preclude the Minister from refusing to approve a special resolution under this section.

78(8)The stated capital of the company shall not be reduced below the amount stated in its instrument of incorporation and required before a licence may be issued to it under Part XII.

78(9)A shareholder, creditor or depositor of a provincial company may apply to the Court for an order compelling a shareholder or other recipient to pay or deliver to the company any money that was paid or distributed to the shareholder or other recipient as a consequence of a reduction of the stated capital made contrary to this section.

78(10)An action to enforce a liability imposed by this section shall not be commenced after two years after the date of the act complained of.

78(11)This section does not affect any liability that arises under section 113.

79(1)On a purchase, redemption or other acquisition by a provincial company under section 77 of shares issued by it, the company shall deduct from the stated capital account maintained for the class or series of shares of which the shares purchased, redeemed or otherwise acquired form a part, 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.

79(2)In like manner to the manner referred to in subsection (1), a provincial company shall adjust its stated capital account or accounts in accordance with any special resolution referred to in subsection 78(1).

80(1)Upon a conversion of shares or a change under subsection 11(10) or section 252 of issued shares of a provincial company into shares of another class or series or kind, the company shall

80(2)For the purposes of subsection (1) and subject to its instrument of incorporation, if a provincial company issues two classes of shares without nominal or par 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.

80(3)Shares issued by a provincial company and converted or changed under subsection 11(10) or section 252 into shares of another class or series shall become issued shares of the class or series of shares into which the shares have been changed.

80(4)Where the instrument of incorporation limits the number of authorized shares of a class or series of shares of a provincial company and issued shares of that class or series have become, pursuant to subsection (3), issued shares of another class or series, the number of unissued shares of the first mentioned class or series shall, unless the supplementary letters patent otherwise provide, be increased by the number of shares that, pursuant to subsection (3), became shares of another class or series.

82(1)A contract with a provincial company providing for the purchase by it of its own shares is specifically enforceable against it except to the extent that it can not perform the contract without being in breach of section 77 or 78.

82(2)In any action brought on a contract referred to in subsection (1), the provincial company has the burden of proving that performance of the contract is prevented by section 77 or 78.

82(3)Until the provincial company has fully performed a contract referred to in subsection (1), the other party to the contract retains the status of a claimant entitled to be paid as soon as the company is lawfully able to do so or in a liquidation to be ranked subordinate to the rights of depositors, creditors and holders of subordinated notes but in priority to the other shareholders.

85(1)Subject to section 84, a provincial company may pay a dividend in money or property or by issuing fully paid shares of the company.

85(2)If shares of a provincial company are issued in payment of a dividend, the amount of the dividend stated as an amount in money shall, in accordance with section 72, 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.

88(1)No transfer or issue of voting shares of a provincial company shall be entered in its share register until the consent of the Minister has been received by the company if

88(2)A person to whom shares are to be transferred or issued in circumstances that require the consent of the Minister may apply in writing for the consent and for the purposes of the application the person shall provide the Minister with any information the Minister may request.

88(3)On an application under subsection (2), the Minister may refuse consent where, in the Minister’s opinion, it would be in the public interest to do so, and without limiting the generality of the foregoing, the Minister may refuse consent where the shareholder or any person who is an associate of the shareholder

88(4)The consent of the Minister under this section takes effect on the date shown in the consent and the effective date may be a date before the date the consent is given.

90(1)Where the Minister proposes to refuse consent under section 88, the Minister shall immediately advise the applicant and shall give the applicant an opportunity to be heard.

90(2)Upon the petition of the applicant, filed with the Clerk of the Executive Council within twenty-eight days after the date of the decision of the Minister under subsection (1), the Lieutenant-Governor in Council may

90(3)Except as provided in subsection (2), a decision of the Minister under this section is final and that decision or the decision as confirmed or varied under subsection (2) is not subject to appeal.

92(1)The directors of a provincial company may make by-laws

92(2)Where under any by-law made under subsection (1), any declaration is required to be submitted by any shareholder or person in respect of the transfer of any share, the directors may prohibit the entry of the transfer in the securities register of the company until the required declaration has been submitted.

92(3)In determining for the purposes relevant to the performance of their duties under sections 88 and 89, the directors of the provincial company and any other person acting as proxy for a shareholder of the provincial company may rely upon any statement made in any declarations or rely upon their own knowledge of the circumstances and the directors and any such person are not liable in any action for anything done or omitted by them in good faith as a result of any conclusions made by them on the basis of any such statements or knowledge.

97(1)Subject to this Act, the directors shall manage the business and affairs of a provincial company.

97(2)The number of directors shall not be fewer than five.

97(3)Subject to the instrument of incorporation and subsection (2), the number of directors shall be as from time to time specified by the by-laws.

98(1)The following persons are disqualified from being a director of a provincial company:

98(2)A director of a provincial company is not required to hold shares issued by the company.

98(3)A person who is elected or appointed a director is not a director unless

99(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 the shareholder multiplied by the number of directors to be elected, and the shareholder may cast all such votes in favour of one candidate or distribute them among the candidates in any manner.

99(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.

99(3)If a shareholder has voted for more than one candidate without specifying the distribution of the votes among the candidates, the shareholder shall be deemed to have distributed the votes equally among the candidates for whom the shareholder voted.

99(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.

99(5)Each director ceases to hold office at the close of the first annual meeting of shareholders following the director’s election.

99(6)Notwithstanding subsection (5), if directors are not elected at a meeting of shareholders the incumbent directors continue in office until their successors are elected.

99(7)A director may not be removed from office if the votes cast against the removal would be sufficient to elect the director 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 of directors required by the by-laws or the instrument of incorporation or under section 97 were then being elected.

100(1)The Superintendent may require a provincial company to provide the information, material and evidence that the Superintendent may consider necessary to assess the fitness of a person to be a director in accordance with this Act.

100(2)At least two of the directors of a provincial company must be ordinarily resident in New Brunswick.

100(3)At least one-third of the directors of a provincial company shall be outside directors unless the Lieutenant-Governor in Council otherwise directs.

100(4)For the purposes of this Part, an individual is not eligible to be an outside director if

100(5)The election or appointment of any person as a director of a provincial company is void if the composition of the board of directors would, as a result of the election or appointment, fail to comply with subsection (2) or (3).

100(6)If a meeting of shareholders fails to elect the number of directors required by the by-laws or the instrument of incorporation or under section 97 by reason of the disqualification, incapacity or death of any candidate, the directors elected at that meeting may exercise all the powers of the directors if the number so elected constitutes a quorum.

101(1)A director of a provincial company ceases to hold office

101(2)The resignation of a director shall be in writing and becomes effective at the time the resignation is sent to the company or at the time specified in the resignation, whichever is later.

102(1)Subject to subsection 99(7), the shareholders of a provincial company may by ordinary resolution at a special meeting remove any director from office.

102(2)Where the holders of any class or series of shares of a provincial company have 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.

102(3)Subject to subsections 99(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 104.

103(1)A director of a provincial company is entitled to receive notice of and to attend and be heard at every meeting of shareholders.

103(2)A director who

103(3)A provincial company shall immediately send a copy of the statement referred to in subsection (2) to shareholders entitled to receive notice of any meeting referred to in subsection (1) and to the Superintendent.

103(4)No provincial company or person acting on its behalf incurs any liability by reason only of circulating a director’s statement in compliance with subsection (3).

104(1)Subject to subsections (3), (4) and (5), a quorum of directors may fill a vacancy among the directors except a vacancy among the directors resulting from an increase in the number of directors or from a failure to elect the number of directors required by the by-laws or the instrument of incorporation or under section 97.

104(2)If there is not a quorum of directors, or if there has been a failure to elect the number of directors required by the by-laws or the instrument of incorporation or under section 97, the directors then in office shall immediately call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting, the meeting may be called by any shareholder.

104(3)Where the holders of any class or series of shares of a provincial company have an exclusive right to elect one or more directors and a vacancy occurs among those directors

104(4)The by-laws of a company 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.

104(5)Notwithstanding subsection (4), where by reason of a vacancy the composition of the board of directors fails to meet the requirement of subsection 100(2), the directors who in the absence of any by-law would be empowered to fill that vacancy shall do so immediately.

104(6)A director appointed or elected to fill a vacancy holds office for the unexpired term of his predecessor.

105(1)Subject to this Act and the instrument of incorporation, the directors of a provincial company shall by by-law determine the number of directors.

105(2)The by-law enacted pursuant to subsection (1) that provides for the number of directors may provide that the number of directors to be elected at any annual meeting of the shareholders shall be such number as is fixed by the directors before the annual meeting and may provide that the directors may at any time appoint a director to fill any vacancy existing because the number of directors is less than the number fixed by the by-law.

105(3)A by-law or an amendment or a repeal of a by-law made under subsection (1) is not effective and shall not be acted on until it has been submitted to the shareholders at the next meeting of shareholders following its enactment, and at such meeting the shareholders may by ordinary resolution confirm, reject or amend the by-law, amendment or repeal.

105(4)The shareholders of a company may amend the instrument of incorporation or by-laws to increase or, subject to subsection (5), 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.

105(5)The number of directors required by the by-laws or the instrument of incorporation or under section 97 may not be decreased if the votes cast against the motion to decrease would be sufficient to elect a director and such votes could be voted in accordance with subsection 99(1) at an election at which the same total number of votes were cast and the number of directors required by the by-laws or the instrument of incorporation or under section 97 were then being elected.

106(1)Unless the by-laws otherwise provide, the directors may meet at any place and on such notice as the by-laws require.

106(2)Subject to the by-laws and instrument of incorporation of a provincial company, a majority of the directors required by the by-laws or the instrument of incorporation or under section 97 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.

106(3)A notice of a meeting of directors shall specify each matter referred to in subsection 108(3) that is to be dealt with at the meeting, but, unless the by-laws otherwise provide, need not otherwise specify the purpose of or the business to be transacted at the meeting.

106(4)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 a meeting except where a director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

106(5)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.

106(6)If authorized by by-law, a meeting of directors or of a committee of directors may be held by means of such telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means shall be deemed for the purposes of this Act to be present at that meeting.

107(1)Unless the instrument of incorporation or the by-laws otherwise provide, the directors may by resolution make, amend or repeal any by-laws that regulate the business or affairs of the company in any respect that is not contrary to this Act or to anything set out in the instrument of incorporation.

107(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.

107(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.

107(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.

107(5)A shareholder may, in accordance with section 126, make a proposal to make, amend or repeal a by-law.

107(6)Subject to subsection (7), where a by-law of a provincial company is in effect on the commencement of this section, it shall continue in effect until amended or repealed unless it is contrary to a provision of this Act.

107(7)A by-law of a provincial company respecting the remuneration of the directors of the company, as directors, in effect on the commencement of this section shall cease to have effect after the day on which the first annual meeting following the commencement of this section is held.

108(1)The directors of a provincial company shall elect from their number a chief executive officer and, subject to subsections (3) and (4), may delegate to that officer any of the powers of the directors.

108(2)Where the by-laws of a company so provide, the directors may appoint from their number committees of not fewer than three directors, at least one of whom, unless the Lieutenant-Governor in Council otherwise directs, is an outside director, and subject to subsection (3), may delegate to any such committee any of the powers of the directors.

108(3)A chief executive officer or a committee of directors appointed under this section has no authority to