BILL 38 Special Corporate Continuance Act

BILL 38

 

Special Corporate Continuance Act

 

 

 

Chapter Outline

Definitions 1

certificate of authorization — certificat d’autorisation

certificate of special continuance — certificat de
prorogation spéciale

continued corporation — corporation prorogée

designated representative — représentant désigné

emergency situation — situation d’urgence

jurisdiction — territoire

Minister — Ministre

non-Canadian corporation — corporation non canadienne

notice of special continuance — avis de prorogation spéciale

original jurisdiction — territoire d’origine

Application for a certificate of authorization 2

Effect of the laws of the original jurisdiction 3

Certificate of authorization 4

Cancellation of a certificate of authorization on request 5

Confidentiality of documents 6

Annual return 7

Change of control 8

Change in original jurisdiction 9

Cancellation of a certificate of authorization by the
Minister 10

Notice of special continuance 11

Certificate of special continuance 12

Application of the Business Corporations Act 13

Effect of continuance under this Act 14

Options of a continued corporation 15


Continuance under the Business Corporations Act 16

Continuance under the laws of another jurisdiction 17

Dissolution 18

Administration 19

Amounts payable 20

Regulations 21

Commencement 22

 

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 In this Act

"certificate of authorization" means a certificate issued by the Minister under section 4;

"certificate of special continuance" means a certificate issued by the Minister under section 12;

"continued corporation" means a body corporate that has been continued under this Act;

"designated representative" means an individual

(a) who is resident in New Brunswick,

(b) who is authorized to practise law in New Brunswick,

(c) who is authorized and has consented to act on behalf of a non-Canadian corporation for the purposes of this Act, and

(d) whose name has been submitted to the Minister in accordance with this Act;

"emergency situation", in respect of a non-Canadian corporation, means the occurrence of any of the following events in its original jurisdiction:

(a) war or other armed conflict;

(b) revolution or insurrection;

(c) invasion or occupation by foreign military forces;

(d) rioting or civil commotion of an extended nature;

(e) expropriation, nationalization or confiscation of a material part of the assets or property of the non-Canadian corporation;

(f) a change to the laws of the original jurisdiction whereby

(i) the validity of actions taken on behalf of the non-Canadian corporation by the directors, officers, agents or any other person authorized to act on behalf of the corporation might not be recognized in or outside of the original jurisdiction, or

(ii) the authority of any person to appoint, elect or authorize any person referred to in subparagraph (i) to act on behalf of the corporation might not be recognized in or outside of the original jurisdiction;

(g) the unlawful death of the head of state of the original jurisdiction;

(h) the immediate or imminent threat of the occurrence of any of the events described in paragraphs (a) to (g);

"jurisdiction" means a country or state or any part of a country or state;

"Minister" means the Minister of Justice;

"non-Canadian corporation" means a body corporate that

(a) is organized and exists under the laws of a jurisdiction other than Canada or a province or territory of Canada, and

(b) has determined to protect its interests in an emergency situation by continuing under the laws of New Brunswick;

"notice of special continuance" means a notice given by a non-Canadian corporation under section 11;

"original jurisdiction" means

(a) the jurisdiction under the laws of which a non-Canadian corporation is subsisting at the time the corporation applies for a certificate of authorization, or

(b) where a non-Canadian corporation to which a certificate of authorization has been issued changes its original jurisdiction in accordance with this Act after the issuance of the certificate, the jurisdiction under the laws of which the corporation is subsisting after the change occurs.

  

Application for a certificate of authorization

2(1) A non-Canadian corporation may apply to the Minister for a certificate of authorization authorizing the corporation to continue under the laws of New Brunswick, subject to and in accordance with this Act, on the occurrence of an emergency situation.

2(2) An application shall be in the prescribed form and shall include:

(a) a statement setting out the following information in respect of the non-Canadian corporation:

(i) its legal name;

(ii) the name of its original jurisdiction;

(iii) the date on which it was incorporated or continued under the laws of its original jurisdiction; and

(iv) the restrictions, if any, on the business it may carry on or the powers it may exercise;

(b) a certified copy of the instrument or instruments by which the non-Canadian corporation was incorporated or continued under the laws of the original jurisdiction and any amendments to the instrument or instruments, together with a certificate of the proper official in the original jurisdiction verifying the status of the corporation in the original jurisdiction;

 

(c) the names of one or two individuals who are resident in New Brunswick, who are authorized to practise law in New Brunswick and who have been authorized by the non-Canadian corporation to act on its behalf as a designated representative for the purposes of this Act, together with the instrument designating and defining the authority of those individuals and their written consent to act as a designated representative;

 

(d) the name of each holder of shares or other rights to which are attached the right to cast more than twenty per cent of the total votes that may be cast in the election of directors of the non-Canadian corporation;

 

(e) a copy of that portion of the laws of the original jurisdiction that defines the terms of the creation and legal existence of the non-Canadian corporation in its original jurisdiction, together with a certificate of a person authorized to practise law in the original jurisdiction verifying the accuracy and applicability of that portion of the laws and the fact that the laws of the original jurisdiction do not expressly prohibit the corporation from continuing under the laws of another jurisdiction;

(f) a certificate of the proper officer or director of the non-Canadian corporation verifying that he or she has the authority to make the application on behalf of the non-Canadian corporation; and

(g) such other documents and information as the Minister may require.

2(3) Where, in the opinion of the Minister, any documents required under subsection (2) are unavailable or difficult to produce, the Minister may accept other documents in place of them.

2(4) Where all or any part of the documents included in an application under subsection (2) are not in the French or English language, the Minister, before considering the application, may require that a translation, verified in a manner satisfactory to the Minister, be submitted to him or her.

Effect of the laws of the original jurisdiction

3(1) A non-Canadian corporation is not entitled to apply for a certificate of authorization if the laws of the original jurisdiction expressly prohibit the corporation from continuing under the laws of another jurisdiction, but is not prohibited from applying for a certificate by reason only that it has not complied with any requirements under the laws of the original jurisdiction in respect of such continuance.

3(2) No change to the laws of the original jurisdiction after the issuance of a certificate of authorization to a non-Canadian corporation shall be applied to affect

(a) the validity of the certificate of authorization, or

(b) the right of the corporation to continue under the laws of New Brunswick, subject to and in accordance with this Act, on the occurrence of an emergency situation.

Certificate of authorization

4(1) Subject to subsection (2), the Minister, in his or her discretion, may issue or refuse to issue a certificate of authorization to a non-Canadian corporation.

4(2) The Minister shall refuse to issue a certificate of authorization to a non-Canadian corporation if the Minister considers it in the public interest to do so.

4(3) The Minister may impose such terms and conditions on a certificate of authorization as he or she considers appropriate.

4(4) A certificate of authorization shall be in the prescribed form.

4(5) Subject to sections 8 and 9, a non-Canadian corporation to which a certificate of authorization has been issued shall, in respect of any change in relation to any document or information included in its application for the certificate that occurs after the issuance of the certificate,

(a) give notice to the Minister no later than the date on which the next annual return is to be submitted to the Minister under section 7 or at the time the corporation gives a notice of special continuance to the Minister, whichever is earlier, and

(b) provide such other documents and information as the Minister may require.

Cancellation of a certificate of authorization on request

5 The Minister, on receipt of a written request for cancellation of the certificate of authorization from a designated representative on behalf of a non-Canadian corporation, shall cancel the certificate of authorization.

Confidentiality of documents

6 Every document, and the information contained in every document, that is submitted to the Minister by or on behalf of a non-Canadian corporation under this Act is confidential, and the Minister shall hold those documents in strictest secrecy until the Minister issues a certificate of special continuance to the non-Canadian corporation.

Annual return

7(1) Each year a non-Canadian corporation to which a certificate of authorization has been issued shall, not later than the last day of the month in which the certificate of authorization was first issued, submit to the Minister an annual return in the prescribed form.

7(2) An annual return shall be submitted on behalf of the non-Canadian corporation by a designated representative.

Change of control

8(1) In this section

"change of control" means

(a) any acquisition by a person of shares or other rights which gives to the person the right to cast more than twenty per cent of the total votes that may be cast in the election of directors of a non-Canadian corporation other than an acquisition of shares or other rights by a person who, immediately before the acquisition, had the right to cast more than twenty per cent of those total votes, or

  

(b) any disposition of shares or other rights by a person who, immediately before the disposition, had the right to cast more than twenty per cent of the total votes that could have been cast in the election of directors of a non-Canadian corporation, if the person ceases to have that right as a result of the disposition.

 

8(2) A non-Canadian corporation to which a certificate of authorization has been issued shall, in respect of any change of control of the non-Canadian corporation that occurs after the issuance of the certificate of authorization,

(a) give notice to the Minister of the change of control, setting out the details, and

(b) provide such other documents and information as the Minister may require.

8(3) A notice under subsection (2) shall be given on behalf of the non-Canadian corporation by a designated representative no later than the date on which the next annual return is to be submitted to the Minister under section 7.

8(4) The Minister may

(a) approve a change of control of which notice is given under subsection (2), if satisfied that to do so is not contrary to the public interest, or

(b) if not so satisfied, cancel the certificate of authorization in accordance with section 10.

 

8(5) A non-Canadian corporation may

(a) give notice to the Minister of a proposed change of control, setting out the details, and

(b) provide such other documents and information as the Minister may require.

8(6) A notice under subsection (5) shall be given on behalf of the non-Canadian corporation by a designated representative.

8(7) On receipt of a notice under subsection (5), the Minister may,

(a) subject to any terms and conditions the Minister considers appropriate, approve the proposed change if satisfied that to do so is not contrary to the public interest, or

(b) if not so satisfied, refuse to approve the proposed change.

Change in original jurisdiction

9(1) A non-Canadian corporation to which a certificate of authorization has been issued shall, if it changes its original jurisdiction after the issuance of a certificate of authorization by continuing under the laws of another jurisdiction,

(a) give notice to the Minister of the change in original jurisdiction, setting out the details, and

(b) provide such other documents and information as the Minister may require.

9(2) A notice under subsection (1) shall be given on behalf of the non-Canadian corporation by a designated representative no later than the date on which the next annual return is to be submitted to the Minister under section 7.

9(3) Subject to subsection (4), the Minister may

 

(a) approve a change in original jurisdiction of which notice is given under subsection (1), if satisfied that to do so is not contrary to the public interest, or

(b) if not so satisfied, cancel the certificate of authorization in accordance with section 10.

 

9(4) The Minister shall not approve a change in original jurisdiction unless satisfied that, at the time the change was made, the laws of the jurisdiction in which the non-Canadian corporation was subsisting immediately after the change did not expressly prohibit the non-Canadian corporation from continuing under the laws of another jurisdiction.

Cancellation of a certificate of authorization by the Minister

10 The Minister, after giving a non-Canadian corporation an opportunity to be heard, may cancel a certificate of authorization if

(a) a change of control or a change in original jurisdiction within the meaning of sections 8 and 9, respectively, which the Minister does not approve in accordance with this Act, occurs in respect of the corporation, or

(b) the corporation does not

(i) submit to the Minister the annual return required under section 7,

(ii) pay the amounts required under section 20,

(iii) provide the documents or information required under this Act,

(iv) comply with any term or condition imposed under this Act by the Minister, or

 

(v) comply with this Act or the regulations in any respect.

Notice of special continuance

11(1) Subject to subsections (2) to (5), a non-Canadian corporation to which a certificate of authorization has been issued may give to the Minister a notice of special continuance on the occurrence of an emergency situation.

11(2) A notice of special continuance shall be given on behalf of the non-Canadian corporation by a designated representative.

11(3) A notice of special continuance shall be in the prescribed form and shall include:

(a) a statement by a designated representative that he or she

(i) has been advised by the proper officer or director of the non-Canadian corporation that an emergency situation has occurred,

 

(ii) has reason to believe that an emergency situation has occurred, and

(iii) has the authority to give a notice of special continuance on behalf of the non-Canadian corporation at this time; and

(b) the following information in respect of the non-Canadian corporation:

(i) the address of its proposed registered office in New Brunswick; and

(ii) the names and addresses of the persons who will act as directors of the non-Canadian corporation on its continuance.

11(4) A notice of special continuance may be given under this section by mail, telefax, courier, personal delivery or such other method as may be acceptable to the Minister.

 

11(5) A non-Canadian corporation shall not give a notice of special continuance if

(a) a change of control or a change in original jurisdiction within the meaning of sections 8 and 9, respectively, which the Minister has not approved in accordance with this Act, has occurred in respect of the corporation after the issuance of the certificate of authorization, or

(b) the corporation has not

(i) submitted to the Minister the annual return required under section 7 for each year,

 

(ii) paid the amounts required under section 20,

(iii) provided the documents or information required under this Act,

(iv) complied with any term or condition imposed under this Act by the Minister, or

(v) complied with this Act or the regulations in any respect.

Certificate of special continuance

12(1) Subject to subsection (2), on receipt of a notice of special continuance in accordance with section 11, the Minister shall issue a certificate of special continuance in the prescribed form authorizing the continuance of the non-Canadian corporation under this Act.

12(2) The Minister may refuse to issue a certificate of special continuance to a non-Canadian corporation if

(a) a change of control or a change in original jurisdiction within the meaning of sections 8 and 9, respectively, which the Minister has not approved in accordance with this Act, has occurred in respect of the corporation after the issuance of the certificate of authorization, or

(b) the corporation has not

(i) submitted to the Minister the annual return required under section 7 for each year,

 

(ii) paid the amounts required under section 20,

(iii) provided the documents or information required under this Act,

(iv) complied with any term or condition imposed under this Act by the Minister, or

 

(v) complied with this Act or the regulations in any respect.

12(3) The certificate of special continuance shall be dated

(a) the date the notice of special continuance was received by the Minister, or

(b) if the Minister considers it appropriate, such later date as the non-Canadian corporation may request.

12(4) The date shown in the certificate of special continuance shall be the effective date of the continuance, and on that date the non-Canadian corporation

(a) is continued under the laws of New Brunswick as if it had been incorporated in New Brunswick,

(b) becomes a continued corporation to which this Act applies,

(c) shall have as its directors the persons named in the notice of special continuance, and

(d) shall have as its registered office in New Brunswick, the registered office at the address specified in the notice of special continuance.

Application of the Business Corporations Act

13(1) Subject to subsection (2) and except where it is inconsistent with this Act, the Business Corporations Act applies with the necessary modifications to a continued corporation.

 

13(2) Part XI of the Business Corporations Act, except as otherwise provided in this Act, and such other Parts or provisions of the Business Corporations Act as may be prescribed by regulation do not apply to a continued corporation.

 

13(3) Without limiting the generality of subsection (1), a continued corporation

(a) has the capacity and, subject to the Business Corporations Act, the rights, powers and privileges of a natural person, as provided in subsections 13(1) and (2) of that Act,

(b) is subject to the restrictions set out in subsection 13(3) of that Act, and

(c) does not have the capacity to carry on the business of banking.

Effect of continuance under this Act

14 When a non-Canadian corporation is continued under this Act,

(a) the continued corporation possesses all the property, rights, privileges and franchises and issubject to all the liabilities, including civil, criminal and administrative, and all contracts, disabilities and debts of the non-Canadian corporation,

(b) a conviction against, or ruling, order or judgment in favour of or against, the non-Canadian corporation may be enforced by or against the continued corporation, and

  

(c) the continued corporation shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against the non-Canadian corporation.

Options of a continued corporation

15 A continued corporation shall, within sixty days after the date shown in the certificate of special continuance or within such further time as the Minister may permit,

(a) subject to section 16, apply for a certificate of continuance under section 126 of the Business Corporations Act, or

 

(b) subject to section 17, apply to the appropriate official of another jurisdiction requesting that the continued corporation be continued as a body corporate under the laws of that other jurisdiction.

Continuance under the Business Corporations Act

16(1) Section 192 of the Business Corporations Act applies with the necessary modifications to an application referred to in paragraph 15(a).

16(2) Where a certificate of continuance is issued to a continued corporation under section 126 of the Business Corporations Act, the Business Corporations Act applies to the corporation on the date shown in the certificate, and this Act ceases to apply on that date.

 

16(3) On receipt of notice satisfactory to the Minister that the continued corporation has been continued under the Business Corporations Act, the Minister shall issue a certificate of discontinuance in the prescribed form, which shall be dated the date shown in the certificate of continuance referred to in subsection (2).

Continuance under the laws of another jurisdiction

17(1) A continued corporation shall not apply under paragraph 15(b) to be continued as a body corporate under the laws of another jurisdiction unless those laws provide in effect that

 

(a) the property of the continued corporation continues to be the property of the body corporate,

(b) the body corporate continues to be liable for the obligations of the continued corporation,

(c) an existing cause of action, claim or liability to prosecution is unaffected,

 

(d) a civil, criminal or administrative action or proceeding pending by or against the continued corporation may be continued to be prosecuted by or against the body corporate, and

(e) a conviction against the continued corporation may be enforced against the body corporate or a ruling, order or judgment in favour of or against the continued corporation may be enforced by or against the body corporate.

 

17(2) On receipt of notice satisfactory to the Minister that the continued corporation has been continued under the laws of another jurisdiction, the Minister shall issue a certificate of discontinuance in the prescribed form.

17(3) This Act ceases to apply to the continued corporation on the date shown in the certificate of discontinuance, which shall be dated the date on which the corporation is continued under the laws of the other jurisdiction.

Dissolution

18(1) If, within the time specified under section 15, the continued corporation has not been issued a certificate of continuance under the Business Corporations Act or a certificate of discontinuance under subsection 17(2), the Minister may, after giving one hundred and twenty days’ notice to the corporation, dissolve the corporation.

18(2) When a continued corporation is dissolved under subsection (1), the Minister shall issue a certificate of dissolution in the prescribed form, which shall be dated the date of dissolution.

 

18(3) A continued corporation in respect of which a certificate of dissolution has been issued under subsection (2) ceases to exist on the date shown in the certificate of dissolution.

18(4) Sections 152 to 154 of the Business Corporations Act apply with the necessary modifications to a corporation dissolved under this section.

 

Administration

19 The Minister is responsible for the administration of this Act.

Amounts payable

20 The following amounts are payable under this Act:

(a) by a non-Canadian corporation,

(i) when an application for a certificate of authorization is made under section 2, five thousand dollars, which is non-refundable,

 

(ii) when a notice is given under subsection 4(5), one hundred dollars,

(iii) each year, when the annual return is to be submitted under subsection 7(1), one thousand dollars,

(iv) when a notice of change of control is given under subsection 8(2) or a notice of a proposed change of control is given under subsection 8(5), one thousand dollars,

 

(v) when a notice of change in original jurisdiction is given under subsection 9(1), one thousand dollars, and

(vi) when a certificate of special continuance is issued under section 12, ten thousand dollars; and

(b) by a continued corporation, when a certificate of discontinuance is issued in respect of the corporation under subsection 16(3) or 17(2), one thousand dollars.

Regulations

21 The Lieutenant-Governor in Council may make regulations

(a) prescribing, for the purposes of subsection 13(2), Parts or provisions of the Business Corporations Act that do not apply to a continued corporation;

(b) respecting forms for the purposes of this Act and prescribing forms required to be prescribed under this Act.

Commencement

22 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.