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Cooperative Credit Associations Act (S.C. 1991, c. 48)

Act current to 2023-01-25 and last amended on 2022-01-01. Previous Versions

PART VIICorporate Governance (continued)

Directors and Officers (continued)

Conflicts of Interest (continued)

Marginal note:Director to abstain

  •  (1) A director who is required to make a disclosure under subsection 206(1) shall not be present at any meeting of directors, or of a committee of directors, while the contract or transaction is being considered or vote on any resolution to approve it unless the contract or transaction

    • (a) relates primarily to their remuneration as a director, officer, employee or agent of the association, an entity controlled by the association or an entity in which the association has a substantial investment;

    • (b) is for indemnity under section 216 or insurance under section 217; or

    • (c) is with an affiliate of the association.

  • Marginal note:Ineligibility

    (2) Any director who knowingly contravenes subsection (1) ceases to hold office as director and is not eligible, for a period of five years after the date on which the contravention occurred, for election or appointment as a director of any financial institution that is incorporated or formed by or under an Act of Parliament.

  • Marginal note:Validity of acts

    (3) An act of the board of directors of an association or of a committee of the board of directors is not invalid because a person acting as a director had ceased under subsection (2) to hold office as a director.

  • 1991, c. 48, s. 207
  • 1997, c. 15, s. 129
  • 2005, c. 54, s. 177

Marginal note:General notice

  •  (1) For the purposes of subsection 206(1), a general notice to the directors declaring that a director or officer is to be regarded as interested for any of the following reasons in a contract or transaction entered into with a party is a sufficient declaration of interest in relation to any contract or transaction with that party:

    • (a) the director or officer is a director or officer of a party referred to in paragraph 206(1)(b) or (c) or a person acting in a similar capacity;

    • (b) the director or officer has a material interest in the party; or

    • (c) there has been a material change in the nature of the director’s or officer’s interest in the party.

  • Marginal note:Access to disclosures

    (2) The members or shareholders of the association may examine the portions of any minutes of meetings of directors or committees of directors that contain disclosures under subsection 206(1), or the portions of any other documents that contain those disclosures, during the usual business hours of the association.

  • 1991, c. 48, s. 208
  • 2005, c. 54, s. 178

Marginal note:Avoidance standards

  •  (1) A contract or transaction for which disclosure is required under subsection 206(1) is not invalid and a director or officer is not accountable to the association or its members or shareholders for any profit realized from it by reason only of the director’s or officer’s interest in the contract or transaction or the fact that the director was present or was counted to determine whether a quorum existed at the meeting of directors, or of a committee of directors, that considered it if

    • (a) the director or officer disclosed their interest in accordance with section 206 and subsection 208(1);

    • (b) the directors approved the contract or transaction; and

    • (c) the contract or transaction was reasonable and fair to the association at the time that it was approved.

  • Marginal note:Confirmation by members

    (2) Even if the conditions set out in subsection (1) are not met, a director or officer acting honestly and in good faith is not accountable to the association or its members or shareholders for any profit realized from a contract or transaction for which disclosure was required and the contract or transaction is not invalid by reason only of the director’s or officer’s interest in it if

    • (a) the contract or transaction is approved or confirmed by special resolution at a meeting of members;

    • (b) disclosure of the interest was made to the members in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and

    • (c) the contract or transaction was reasonable and fair to the association at the time that it was approved or confirmed.

  • 1991, c. 48, s. 209
  • 2005, c. 54, s. 178

Marginal note:Court may set aside or require accounting

 If a director or officer of an association fails to comply with any of sections 206 to 209, a court, on application of the association or any of its members or shareholders, may set aside the contract or transaction on any terms that the court thinks fit and may require the director or officer to account to the association for any profit or gain realized on it.

  • 1991, c. 48, s. 210
  • 2005, c. 54, s. 178

Liability, Exculpation and Indemnification

Marginal note:Director liability

  •  (1) Directors of an association who vote for or consent to a resolution of the directors authorizing the issue of a membership share or a share contrary to subsection 74(1) or the issue of subordinated indebtedness contrary to section 87 for a consideration other than money are jointly and severally, or solidarily, liable to the association to make good any amount by which the consideration received is less than the fair equivalent of the money that the association would have received if the membership share or share or subordinated indebtedness had been issued for money on the date of the resolution.

  • Marginal note:Further liability

    (2) Directors of an association who vote for or consent to a resolution of the directors authorizing any of the following are jointly and severally, or solidarily, liable to restore to the association any amounts so distributed or paid and not otherwise recovered by the association and any amounts in relation to any loss suffered by the association:

    • (a) a redemption or purchase of membership shares or shares contrary to section 79;

    • (b) a reduction of capital contrary to section 82;

    • (c) a payment of a dividend contrary to section 86;

    • (d) a payment of an indemnity contrary to section 216; or

    • (e) any transaction contrary to Part XII.

  • 1991, c. 48, s. 211
  • 2005, c. 54, s. 179(E)

Marginal note:Contribution

  •  (1) A director who has satisfied a judgment in relation to the director’s liability under section 211 is entitled to contribution from the other directors who voted for or consented to the unlawful act on which the judgment was founded.

  • Marginal note:Recovery

    (2) A director who is liable under section 211 is entitled to apply to a court for an order compelling a member, shareholder or other person to pay or deliver to the director

    • (a) any money or property that was paid or distributed to the member, shareholder or other person contrary to section 79, 82, 86 or 216; or

    • (b) an amount equal to the value of the loss suffered by the association as a result of any transaction contrary to Part XII.

  • Marginal note:Court order

    (3) Where an application is made to a court under subsection (2), the court may, where it is satisfied that it is equitable to do so,

    • (a) order a member, shareholder or other person to pay or deliver to a director any money or property that was paid or distributed to the member, shareholder or other person contrary to section 79, 82, 86 or 216 or any amount referred to in paragraph (2)(b);

    • (b) order an association to return or issue membership shares or shares to a member or shareholder from whom the association has purchased, redeemed or otherwise acquired membership shares or shares; or

    • (c) make any further order it thinks fit.

Marginal note:Limitation

 An action to enforce a liability imposed by section 211 may not be commenced after two years from the date of the resolution authorizing the action complained of.

Marginal note:Directors liable for wages

  •  (1) Subject to subsections (2) and (3), the directors of an association are jointly and severally, or solidarily, liable to each employee of the association for all debts not exceeding six months wages payable to the employee for services performed for the association while they are directors.

  • Marginal note:Conditions precedent

    (2) A director is not liable under subsection (1) unless

    • (a) the association has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part;

    • (b) the association has commenced liquidation and dissolution proceedings or has been dissolved and a claim for the debt has been proven within six months after the earlier of the date of commencement of the liquidation and dissolution proceedings and the date of dissolution; or

    • (c) a winding-up order has been issued in respect of the association under the Winding-up and Restructuring Act and a claim for the debt has been allowed or proven within six months after the issue of the winding-up order.

  • Marginal note:Limitations

    (3) A director is not liable under subsection (1) unless the director is sued for a debt referred to in that subsection while a director or within two years after the director has ceased to be a director.

  • Marginal note:Amount due after execution

    (4) Where execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.

  • Marginal note:Subrogation of director

    (5) Where a director of an association pays a debt referred to in subsection (1) that is proven in liquidation and dissolution or winding-up proceedings, the director is entitled to any preference that the employee would have been entitled to and, where a judgment has been obtained, the director is entitled to an assignment of the judgment.

  • Marginal note:Contribution entitlement

    (6) A director of an association who has satisfied a claim under this section is entitled to a contribution from the other directors of the association who are liable for the claim.

  • 1991, c. 48, s. 214
  • 1996, c. 6, s. 167
  • 2005, c. 54, s. 180(E)

Marginal note:Defence — due diligence

  •  (1) A director, officer or employee of an association is not liable under section 211 or 214 or subsection 430(1) and has fulfilled their duty under subsection 168(2) if they exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

    • (a) financial statements of the association that were represented to them by an officer of the association or in a written report of the auditor of the association fairly to reflect the financial condition of the association; or

    • (b) a report of a person whose profession lends credibility to a statement made by them.

  • Marginal note:Defence — good faith

    (2) A director or officer of an association has fulfilled their duty under subsection 168(1) if they relied in good faith on

    • (a) financial statements of the association that were represented to them by an officer of the association or in a written report of the auditor of the association fairly to reflect the financial condition of the association; or

    • (b) a report of a person whose profession lends credibility to a statement made by them.

  • 1991, c. 48, s. 215
  • 2001, c. 9, s. 279
  • 2005, c. 54, s. 181

Marginal note:Indemnification

  •  (1) An association may indemnify a director or officer of the association, a former director or officer of the association or another person who acts or acted, at the association’s request, as a director or officer of or in a similar capacity for another entity against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by them in respect of any civil, criminal, administrative, investigative or other proceeding in which they are involved because of that association with the association or other entity.

  • Marginal note:Advances

    (2) An association may advance amounts to the director, officer or other person for the costs, charges and expenses of a proceeding referred to in subsection (1). They shall repay the amounts if they do not fulfil the conditions set out in subsection (3).

  • Marginal note:No indemnification

    (3) An association may not indemnify a person under subsection (1) unless

    • (a) the person acted honestly and in good faith with a view to the best interests of, as the case may be, the association or the other entity for which they acted at the association’s request as a director or officer or in a similar capacity; and

    • (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the person had reasonable grounds for believing that their conduct was lawful.

  • Marginal note:Indemnification — derivative actions

    (4) An association may with the approval of a court indemnify a person referred to in subsection (1) or advance amounts to them under subsection (2) — in respect of an action by or on behalf of the association or other entity to procure a judgment in its favour to which the person is made a party because of the association referred to in subsection (1) with the association or other entity — against all costs, charges and expenses reasonably incurred by them in connection with that action if they fulfil the conditions set out in subsection (3).

  • Marginal note:Right to indemnity

    (5) Despite subsection (1), a person referred to in that subsection is entitled to be indemnified by the association in respect of all costs, charges and expenses reasonably incurred by them in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the person is subject because of their association referred to in subsection (1) with the association or other entity described in that subsection if the person

    • (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that they ought to have done; and

    • (b) fulfils the conditions set out in subsection (3).

  • Marginal note:Heirs and personal representatives

    (6) An association may, to the extent referred to in subsections (1) to (5) in respect of the person, indemnify the heirs or personal representatives of any person whom the association may indemnify under those subsections.

  • 1991, c. 48, s. 216
  • 2001, c. 9, s. 280(F)
  • 2005, c. 54, s. 181

Marginal note:Directors’ and officers’ insurance

 An association may purchase and maintain insurance for the benefit of any person referred to in section 216 against any liability incurred by the person

  • (a) in the capacity of a director or an officer of the association, except where the liability relates to a failure to act honestly and in good faith with a view to the best interests of the association; or

  • (b) in the capacity of a director or officer of another entity or while acting in a similar capacity for another entity, if they act or acted in that capacity at the association’s request, except if the liability relates to a failure to act honestly and in good faith with a view to the best interests of the entity.

  • 1991, c. 48, s. 217
  • 2005, c. 54, s. 182

Marginal note:Application to court for indemnification

  •  (1) An association or a person referred to in section 216 may apply to a court for an order approving an indemnity under that section and the court may so order and make any further order it thinks fit.

  • Marginal note:Notice to Superintendent

    (2) An applicant under subsection (1) shall give the Superintendent written notice of the application and the Superintendent is entitled to appear and to be heard at the hearing of the application in person or by counsel.

  • Marginal note:Other notice

    (3) On an application under subsection (1), the court may order notice to be given to any interested person and that person is entitled to appear and to be heard in person or by counsel at the hearing of the application.

 
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