An Act to amend certain Acts in relation to financial institutions (S.C. 2005, c. 54)
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Assented to 2005-11-25
1991, c. 47INSURANCE COMPANIES ACT
311. Section 764 of the Act is renumbered as subsection 764(1) and is amended by adding the following:
Marginal note:Participation by electronic means
(2) Unless the by-laws provide otherwise, any person who is entitled to attend a meeting of shareholders may participate in the meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting if the insurance holding company makes one available. A person who is participating in a meeting by one of those means is deemed for the purposes of this Part to be present at the meeting.
Marginal note:Regulations
(3) The Governor in Council may make regulations respecting the manner of and conditions for participating in a meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting.
312. Section 765 of the Act is renumbered as subsection 765(1) and is amended by adding the following:
Marginal note:Order to delay calling annual meeting
(2) Despite subsection (1), the insurance holding company may apply to the court for an order extending the time for calling an annual meeting.
Marginal note:Obligation to notify Superintendent
(3) The insurance holding company shall give notice of the application to the Superintendent before any hearing concerning the application and shall provide the Superintendent with a copy of any order that is issued.
Marginal note:Superintendent’s right to appear
(4) The Superintendent is entitled to appear and be heard in person or by counsel at any hearing concerning the application.
Marginal note:2001, c. 9, s. 465
313. Section 766 of the Act is replaced by the following:
Marginal note:Authority to fix record date
766. (1) The directors may in advance fix a record date, that is within the prescribed period, for the determination of shareholders for any purpose, including for a determination of which shareholders are entitled to
(a) receive payment of a dividend;
(b) participate in a liquidation distribution;
(c) receive notice of a meeting of shareholders; or
(d) vote at a meeting of shareholders.
Marginal note:Determination of record date
(2) If no record date is fixed,
(a) the record date for the determination of shareholders who are entitled to receive notice of a meeting of shareholders is
(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 other purpose, other than to establish a shareholder’s right to vote, is at the close of business on the day on which the directors pass a resolution in respect of that purpose.
Marginal note:Notice of record date
(3) If a record date is fixed and unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day on which the directors fix the record date, notice of the record date shall be given within the prescribed period by
(a) advertisement in a newspaper in general circulation in the place where the insurance holding company’s head office is situated and in each place in Canada where the insurance holding company has a transfer agent or where a transfer of its shares may be recorded; and
(b) written notice to each stock exchange in Canada on which the insurance holding company’s shares are listed for trading.
Marginal note:2001, c. 9, s. 465
314. (1) Subsection 767(1) of the Act is replaced by the following:
Marginal note:Notice of meeting
767. (1) Notice of the time and place of a meeting of shareholders of an insurance holding company shall be sent within the prescribed period to
(a) each shareholder entitled to vote at the meeting;
(b) each director;
(c) the auditor of the insurance holding company; and
(d) the Superintendent.
Marginal note:Exception
(1.1) In the case of an insurance holding company that is not a distributing insurance holding company, notice may be sent within any shorter period specified in its by-laws.
Marginal note:2001, c. 9, s. 465
(2) Subsection 767(6) of the Act is replaced by the following:
Marginal note:Notice not required
(6) Notice of a meeting of shareholders is not required to be sent to shareholders who are not registered on the records of the insurance holding company or the insurance holding company’s transfer agent on the record date fixed under paragraph 766(1)(c) or determined under paragraph 766(2)(a).
Marginal note:2001, c. 9, s. 465
315. (1) Subsection 770(1) of the Act is replaced by the following:
Marginal note:Proposals
770. (1) Subject to subsections (1.1) and (1.2), a registered holder or a beneficial owner of shares that may be voted at an annual meeting of shareholders may
(a) submit to the insurance holding company notice of any matter that they propose to raise at the meeting (in this section and section 771 referred to as a “proposal”); and
(b) discuss at the meeting any matter in respect of which they would have been entitled to submit a proposal.
Marginal note:Eligibility to submit proposal
(1.1) To be eligible to submit a proposal a person shall
(a) for at least the prescribed period be the registered holder or beneficial owner of at least the prescribed number of the insurance holding company’s outstanding shares; or
(b) have the support of persons who, in the aggregate and including or not including the person who submits the proposal, have for at least the prescribed period been the registered holders or beneficial owners of at least the prescribed number of the insurance holding company’s outstanding shares.
Marginal note:Information to be provided
(1.2) A proposal is to be accompanied by the following information:
(a) the name and address of the person submitting the proposal and the names and addresses of their supporters, if any; and
(b) the number of shares held or owned by the person and their supporters and the date that the shares were acquired.
Marginal note:Information not part of proposal
(1.3) The information provided under subsection (1.2) does not form part of a proposal or of the supporting statement referred to in subsection (3) and is not to be included for the purposes of the prescribed maximum number of words referred to in subsection (3).
Marginal note:Proof may be required
(1.4) If the insurance holding company requests within the prescribed period that a person provide proof that they are eligible to submit a proposal, the person shall within the prescribed period provide proof that they meet the requirements of subsection (1.1).
Marginal note:2001, c. 9, s. 465
(2) Subsections 770(3) to (5) of the Act are replaced by the following:
Marginal note:Supporting statement
(3) At the request of the person who submits a proposal, the insurance holding company shall attach to the notice of the meeting the person’s statement in support of the proposal and their name and address. The statement and proposal together are not to exceed the prescribed maximum number of words.
Marginal note:Nomination of directors
(4) A proposal may include nominations for the election of directors if it is signed by one or more registered holders or beneficial owners of shares representing in the aggregate not less than 5% of the shares of the insurance holding company or 5% of the shares of a class of its shares entitled to vote at the meeting at which the proposal is to be presented.
Marginal note:Exemption
(5) An insurance holding company is not required to comply with subsections (2) and (3) if
(a) the proposal is not submitted to the insurance holding company at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in respect of the previous annual meeting of shareholders;
(b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the insurance holding company or its directors, officers or security holders;
(b.1) it clearly appears that the proposal does not relate in a significant way to the business or affairs of the insurance holding company;
(c) the person submitting the proposal failed within the prescribed period before the insurance holding company receives their proposal to present, in person or by proxy, at a meeting of shareholders a proposal that at their request had been attached to the notice of the meeting;
(d) substantially the same proposal was set out in or attached to a dissident’s proxy circular or a notice of a meeting relating to, and presented to shareholders at, a meeting of shareholders held within the prescribed period before the receipt of the proposal and did not receive the prescribed minimum amount of support at the meeting; or
(e) the rights conferred by subsections (1) to (4) are being abused to secure publicity.
Marginal note:Insurance holding company may refuse to include proposal
(5.1) If a person who submits a proposal fails to continue to hold or own shares in accordance with paragraph (1.1)(a) or, as the case may be, does not continue to have the support of persons who are in the aggregate the registered holders or beneficial owners of the prescribed number of shares in accordance with paragraph (1.1)(b) until the end of the meeting, the insurance holding company is not required to attach any proposal submitted by that person to a notice of a meeting for any meeting held within the prescribed period after the day of the meeting.
Marginal note:2001, c. 9, s. 465
316. (1) Subsections 771(1) and (2) of the Act are replaced by the following:
Marginal note:Notice of refusal
771. (1) If an insurance holding company refuses to attach a proposal to a notice of a meeting, it shall in writing notify the person submitting the proposal of its intention not to attach the proposal and of the reasons for the refusal. It shall notify the person within the prescribed period after either the day on which it receives the proposal or, if it has requested proof under subsection 770(1.4), the day on which it receives the proof.
Marginal note:Application to court
(2) On the application of a person submitting a proposal who claims to be aggrieved by an insurance holding company’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order that it thinks fit.
Marginal note:2001, c. 9, s. 465
(2) Subsection 771(3) of the French version of the Act is replaced by the following:
Marginal note:Demande de la société
(3) La société ou toute personne qui prétend qu’une proposition lui cause un préjudice peut demander au tribunal une ordonnance autorisant la société à ne pas l’annexer à l’avis de l’assemblée; le tribunal, s’il est convaincu que le paragraphe 770(5) s’applique, peut rendre en l’espèce la décision qu’il estime pertinente.
Marginal note:2001, c. 9, s. 465
317. (1) Subsections 772(1) to (3) of the Act are replaced by the following:
Marginal note:List of shareholders entitled to notice
772. (1) An insurance holding company shall prepare an alphabetical list of shareholders entitled to receive notice of a meeting, showing the number of shares held by each shareholder
(a) if a record date is fixed under paragraph 766(1)(c), no later than 10 days after that date; and
(b) if no record date is fixed, on the record date determined under paragraph 766(2)(a).
Marginal note:Voting list
(2) The insurance holding company shall prepare an alphabetical list of shareholders entitled to vote as of the record date showing the number of shares held by each shareholder
(a) if a record date is fixed under paragraph 766(1)(d), no later than 10 days after that date; and
(b) if no record date is fixed under paragraph 766(1)(d), no later than 10 days after a record date is fixed under paragraph 766(1)(c) or no later than the record date determined under paragraph 766(2)(a), as the case may be.
Marginal note:Entitlement to vote
(3) Subject to section 793, a shareholder whose name appears on a list prepared under subsection (2) is entitled to vote the shares shown opposite their name.
Marginal note:2001, c. 9, s. 465
(2) The portion of subsection 772(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Examination of list
(4) A shareholder may examine the list of shareholders
318. Section 778 of the Act is amended by adding the following after subsection (2):
Marginal note:Electronic voting
(3) Despite subsection (1) and unless the by-laws provide otherwise, any vote referred to in that subsection may be held entirely by means of a telephonic, electronic or other communication facility if the insurance holding company makes one available.
Marginal note:Voting while participating electronically
(4) Unless the by-laws provide otherwise, any person who is participating in a meeting of shareholders under subsection 764(2) and entitled to vote at that meeting may vote by means of the telephonic, electronic or other communication facility that the insurance holding company has made available for that purpose.
Marginal note:Regulations
(5) The Governor in Council may make regulations respecting the manner of and conditions for voting at a meeting of shareholders by means of a telephonic, electronic or other communication facility.
319. Section 779 of the Act is amended by adding the following after subsection (2):
Marginal note:Evidence
(3) Unless a ballot is demanded, an entry in the minutes of a meeting that the chairperson declared a resolution to be carried or defeated is in the absence of evidence to the contrary proof of that fact without proof of the number or proportion of votes recorded in favour of or against the resolution.
Marginal note:2001, c. 9, s. 465
320. Paragraph 780(3)(a) of the Act is replaced by the following:
(a) a record date has been fixed under paragraph 766(1)(c) and notice of it has been given under subsection 766(3);
Marginal note:2001, c. 9, s. 465
321. Subsections 781(1) and (2) of the Act are replaced by the following:
Marginal note:Court may order meeting to be called
781. (1) A court may, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders or the Superintendent, order a meeting to be called, held or conducted in the manner that the court directs if
(a) it is impracticable to call the meeting within the time or in the manner in which it is to be called;
(b) it is impracticable to conduct the meeting in the manner required by this Part or the by-laws; or
(c) the court thinks that the meeting ought to be called, held or conducted within the time or in the manner that it directs for any other reason.
Marginal note:2001, c. 9, s. 465
322. (1) The definition “registrant” in section 785 of the Act is repealed.
Marginal note:2001, c. 9, s. 465
(2) The definition ““solicit” or “solicitation”” in section 785 of the Act is replaced by the following:
“solicitation”
« sollicitation »
“solicitation”
(a) includes
(i) a request for a proxy whether or not accompanied by a form of proxy,
(ii) a request to execute or not to execute a form of proxy or to revoke a proxy,
(iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and
(iv) the sending of a form of proxy to a shareholder under subsection 788(1); but
(b) does not include
(i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
(ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy,
(iii) the sending by an intermediary of the documents referred to in subsection 791(1),
(iv) a solicitation by a person in respect of shares of which they are the beneficial owner,
(v) a prescribed public announcement by a shareholder of how they intend to vote and the reasons for that decision,
(vi) a communication for the purposes of obtaining the support of persons in accordance with paragraph 770(1.1)(b), or
(vii) a communication, other than a solicitation by or on behalf of the management of an insurance holding company, that is made to shareholders in the prescribed circumstances.
(3) Section 785 of the Act is amended by adding the following in alphabetical order:
“intermediary”
« intermédiaire »
“intermediary” means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes
(a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction;
(b) a securities depositary;
(c) a financial institution;
(d) in respect of a clearing agency, a securities dealer, trust company, association within the meaning of section 2 of the Cooperative Credit Associations Act, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominee holds securities of an issuer;
(e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund or education savings plan or another similar self-administered savings or investment plan that is registered under the Income Tax Act;
(f) a nominee of a person referred to in any of paragraphs (a) to (e); and
(g) a person who performs functions similar to those performed by a person referred to in any of paragraphs (a) to (e) and holds a security registered in their name, or in the name of their nominee, on behalf of another person who is not the registered holder of the security.
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