BILL 55

An Act to Amend An Act To Incorporate New World Trust Corporation

WHEREAS New World Trust Corporation prays that it be enacted as hereinafter set forth;

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

1 Section 1 of An Act To Incorporate New World Trust Corporation, chapter 59 of the Acts of New Brunswick, 1977, is repealed and the following is substituted:

1(1) In this Act, unless the context otherwise requires,

"company" means New World Trust Corporation;

"corporation" includes a company or other body corporate wherever or however incorporated;

"Court" means The Court of Queen's Bench of New Brunswick;

"Director" means the Director as defined in the Business Corporations Act;

"emergency condition" includes, but is not limited to, any of the following circumstances:

(a) war or other armed conflict;

(b) revolution, rebellion, insurrection or coup d'etat;

(c) invasion or occupation by foreign military forces;

(d) rioting or civil commotion of an extended nature; domination or control by a foreign power;

(e) any action by a governmental authority outside Canada in furtherance of expropriation, nationalization, confiscation, blocking, seizing, impounding, freezing or other taking control of a material part of the assets or property

(i) owned by the company,

(ii) controlled by or under the direction or in the custody of the company, or

(iii) in respect of which the company acts as trustee,

and including any of the foregoing assets and property that may, for the time being, be in the custody of, or controlled or directed by, any affiliate or subsidiary of the company;

(f) impairment of the institution of, or of the ability to freely possess, enjoy or alienate, private property held anywhere in the world;

(g) the unlawful death of a head of state;

(h) the taking of any action under the laws of any state other than Canada or any province thereof having jurisdiction over the assets, property or internal affairs of the company or any shareholder of the company or any property or assets in respect of which the company acts as trustee, whereby actions taken by persons who are

(i) resident in New Brunswick or elsewhere in Canada,

(ii) directors, officers, agents or attorneys of the company, or

(iii) directors, officers, agents or attorneys of any subsidiary or affiliate of the company that has, for the time being, custody, control or direction of any property or assets of the company or in respect of which the company acts as trustee,

might not be recognized or the interests of persons with whom the company stands in a fiduciary capacity might not be recognized; or

(i) the immediate or imminent threat of any of the aforegoing;

"Minister" means the Minister of Justice.

1(2) For the purposes of this Act,

(a) one corporation is affiliated with another corporation if one of them is the subsidiary of the other or both are subsidiaries of the same corporation or each of them is controlled by the same person; and

(b) if two corporations are affiliated with the same corporation at the same time, they shall be deemed to be affiliated with each other.

1(3) For the purposes of this Act, a corporation shall be deemed to be controlled by a person if shares of the corporation carrying voting rights sufficient to elect a majority of the directors of the corporation are held, directly or indirectly, other than by way of security only, by or on behalf of that person.

2 Section 2 of the Act is amended

(a) by renumbering the section as subsection 2(1);

(b) by striking out "; and the company shall have all powers and privileges made incidental to companies and corporations generally by the laws of the Province; and the company shall also have all powers and privileges made incidental to trust companies and trustees generally by the laws of the Province, provided that the company shall be subject to all public statutes pertinent to trust companies and trustees";

(c) by adding after subsection (1) the following:

2(2) The company may, with the consent of the Minister, change its name in the manner prescribed by and subject to the provisions of the Business Corporations Act.

3 Section 3 of the Act is repealed and the following is substituted:

3 The registered office of the company shall be at The City of Saint John in the County of Saint John and Province of New Brunswick but the registered office of the company may be changed to another place in New Brunswick in the manner prescribed by the Business Corporations Act.

4 Section 4 of the Act is amended

(a) by striking out the portion preceding paragraph (a) and substituting the following:

4(1) Subject to this Act, the company has the capacity of a natural person and subject to this Act the rights, powers and privileges of a natural person.

4(2) Without limiting the generality of subsection (1), the company has the power

(b) in paragraph (a) by adding "(real or personal)" after "property";

(c) in paragraph (b) by striking out "moneys borrowed by" and substituting "obligations or liabilities of";

(d) in paragraph (c) by adding "and whether in its own name or the name of its nominees" after "bequest, or otherwise";

(e) in paragraph (c) by adding "promissory notes, bills of exchange," after "stocks,";

(f) in paragraph (c) by adding "mortgages, rights, warrants, options," after "debentures,";

(g) in paragraph (h) by adding "encumber, grant a security interest in," after "pledge,";

(h) in paragraph (i) by striking out "subject to the Trust Companies Act,";

(i) in paragraph (l) by striking out "or corporation" and substituting ", corporation, trust or partnership";

(j) in paragraph (p) by striking out "Companies" and substituting "Business Corporations";

(k) in paragraph (q) by striking out "similar";

(l) by repealing paragraph (r) and substituting the following:

(r) to enter into any agreement, including agreements for partnership, sharing profits, union of interest, cooperation, joint adventure, reciprocal concession or other arrangement of like nature with other persons, partnerships, trusts or companies carrying on any similar business;

(m) in paragraph (t)

(i) by striking out "by" and substituting "of any corporation, partnership, trust, joint venture,";

(ii) by adding "or any other person" after "company";

(n) in paragraph (v) by adding ", any amendments hereto" after "incorporation";

(o) in paragraph (y)

(i) by striking out "of the company" and substituting "of such company";

(ii) by striking out "calculated" in the English version of the Act;

(p) in paragraph (cc) by striking out "or partly";

(q) in paragraph (dd) by striking out "is made for the purpose of enabling the company to surrender its charter or such distribution";

(r) in paragraph (ee) by striking out "and" at the end of the paragraph;

(s) by adding after paragraph (ee) the following:

(ee.1) to establish and declare trusts and to act in all ways as a trustee, fiduciary and mandatory and do all such things as a trustee, fiduciary or mandatory may do and in general act as administrator, executor, committee, assignee, liquidator, receiver, registrar, mandator, guardian, transfer agent, trustee, fiduciary, mandatory, protector, custodian trustee or curator in or in respect of any trust deed, deed, declaration, settlement, mortgage, agreement, indenture, conveyance, estate, will, codicil, probate, letters of administration, judgment, order or appointment or any document whatsoever or any trust howsoever created;

(ee.2) to manage investment portfolios and all assets moveable and immoveable and to provide advice on and supervision of financial transactions in the course of administering any trust or estate of which it is a trustee, or executor, or administrator or in carrying out any obligation resulting from the exercise of a power referred to in paragraph (ee.1); and

5 Section 5 of the Act is amended

(a) by renumbering the section as subsection 5(1);

(b) by striking out "The purposes and powers hereinabove set forth are in addition to and supplement the purposes and powers otherwise conferred by the Trust Companies Act and except" and substituting "Except";

(c) by striking out "section 4" wherever it appears and substituting "subsection 4 (2)";

(d) by adding after subsection (1) the following:

5(2) All of the powers set forth in subsection 4(2) and the several paragraphs of subsection 4(2) may be exercised or given effect to by the company in any jurisdiction or country in accordance with the laws of such jurisdiction or country and all references in the several paragraphs of subsection 4(2) to property or anything of a like nature are references to the same wherever situate.

6 Subsection 6(2) of the Act is repealed and the following is substituted:

6(2) The authorized capital of the company may be amended or increased in the manner prescribed by the Business Corporations Act, which amendments are hereby authorized.

7 Section 10 of the Act is repealed and the following is substituted:

10(1) Subject to amendments from time to time in accordance with the Business Corporations Act, such amendments being hereby authorized, there shall be a minimum of one (1), and a maximum of fifteen (15), directors of the company.

10(2) Any or all of the directors of the company from time to time may be individuals not resident in the Province of New Brunswick or in Canada and may be citizens of any country.

8 Section 11 of the Act is amended

(a) by renumbering the section as subsection 11(1);

(b) by adding after subsection (1) the following:

11(2) Meetings of the shareholders and meetings of the directors of the company and of any committee of directors may be held at any place within or outside New Brunswick, and within or outside Canada.

11(3) A director of the company may, if all the directors of the company consent, participate in a meeting of directors or of a committee of directors by means of such telephone or other communications facilities that permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means is deemed for the purposes of this Act to be present at that meeting and the company may, by by-law, adopt rules for determining the location of meetings of directors or committees of directors where persons participate by telephone or other communications facilities.

11(4) A shareholder may, if the by-laws of the company provide, participate in a meeting of shareholders by means of such telephone or other communications facilities that permit all persons participating in the meeting to hear each other, and a shareholder participating in such a meeting by such means is deemed for the purposes of this Act to be present at the meeting and the company may, by by-law, adopt rules for determining the location of meetings of shareholders where persons participate by telephone or other communications facilities.

11(5) A resolution in writing, signed by all directors or signed counterparts of such resolution by all directors entitled to vote on that resolution at a meeting of directors or committee of directors, is as valid as if it had been passed at a meeting of directors or committee of directors duly called, constituted and held and a copy of every such resolution shall be kept with the minutes of the proceedings of the directors or committee of directors.

11(6) A resolution in writing, signed by all shareholders or signed counterparts of such resolution by all shareholders entitled to vote on that resolution at a meeting of shareholders, is as valid as if it had been passed at a meeting of the shareholders duly called, constituted and held; and a resolution in writing dealing with all matters required to be dealt with at a meeting of shareholders, and signed by all shareholders or signed counterparts of such resolution by all shareholders entitled to vote at that meeting, satisfies all of the requirements relating to meetings of shareholders and a copy of every such resolution shall be kept with the minutes of the meetings of shareholders.

9 Section 12 of the Act is repealed and the following is substituted:

12(1) Unless the by-laws of the company otherwise provide, the directors may by resolution make, amend or repeal any by-laws that regulate the business or affairs of the company.

12(2) The directors shall submit a by-law, or an amendment or repeal of a by-law, made under subsection (1) to the shareholders, and the shareholders may, by ordinary resolution, confirm or reject the by-law, amendment or repeal.

12(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) and where the by-law is confirmed it continues in effect in the form in which it was so confirmed.

12(4) The directors of the company may appoint from their number a managing director or one or more committees of directors and delegate to such managing director or committees any of the powers of the directors.

12(5) Notwithstanding subsection (4), no managing director and no committee of directors has authority to:

(a) submit to the shareholders any question or matter requiring the approval of the shareholders;

(b) fill a vacancy among the directors, or if an auditor has been appointed, in the office of the auditor;

(c) issue securities except in the manner and on the terms authorized by the directors;

(d) declare dividends;

(e) purchase, redeem or otherwise acquire shares issued by the company;

(f) pay a commission concerning the issue of the company's shares;

(g) approve any financial statements of the company required to be placed before the shareholders at an annual meeting; or

(h) adopt, amend or repeal by-laws.

12(6) The appointment of a managing director or committee of directors does not relieve the directors of the company from any liability imposed by law.

12(7) The directors of the company may, from time to time, without authorization of the shareholders,

(a) borrow money upon the credit of the company;

(b) issue, reissue, sell or pledge debt obligations of the company;

(c) give a guarantee on behalf of the company to secure performance of an obligation of any person; and

(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the company, owned or subsequently acquired, to secure any obligation of the company.

12(8) The directors may by resolution delegate any or all of the powers referred to in subsection (7) to a director, a committee of the directors or an officer of the company.

12(9) Nothing in this Act limits or restricts the borrowing of money by the company on bills of exchange or promissory notes, made, drawn, accepted or endorsed by or on behalf of the company.

10 Section 15 of the Act is repealed and the following is substituted:

15(1) The Business Corporations Act applies to the company except to the extent that the Business Corporations Act is inconsistent with this Act.

15(2) No articles under the Business Corporations Act shall be adopted by the company that would have the effect of amending this Act, unless expressly authorized by this Act.

15(3) For the purposes of applying the Business Corporations Act, any reference therein to "Certificate of Incorporation" or "Articles of Incorporation" shall refer to this Act.

11 Section 17 of the Act is repealed.

12 Section 18 of the Act is repealed and the following is substituted:

18(1) Subject to subsection (4), the company may, if it is authorized by its shareholders by a special resolution, apply to the appropriate official or public body of another jurisdiction requesting that the company be continued as if it had been incorporated under the laws of that other jurisdiction.

18(2) Upon receipt of notice satisfactory to the Director that the company has been continued under the laws of another jurisdiction, the Director shall file the notice and issue a certificate of discontinuance.

18(3) This Act and the Business Corporations Act cease to apply to the company on the date shown in the certificate of discontinuance, which shall be dated the date upon which the company is continued under the laws of another jurisdiction and at such date every property of every nature and kind, both real and personal and tangible and intangible, and every estate, lease, charge, possibility, chose in action, or right that is granted to, or held by, or vested in the company, whether by way of security or otherwise, in trust for or for the benefit of any other person or purpose, pursuant to or in respect of any document or trust and whether in the form in which it was originally acquired by the company or otherwise, shall be and remain vested in the company as it has been continued under the laws of another jurisdiction, according to the tenor of and at the time indicated or intended by the document or trust, upon the same trusts and with the same powers, rights, immunities, and privileges, and subject to the same obligations and duties as are thereby provided, granted or imposed.

18(4) The 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

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

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

(c) an existing cause of action or claim arising under the laws of New Brunswick or liability to prosecution in New Brunswick is unaffected,

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

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

13 Section 19 of the Act is repealed and the following is substituted:

19(1) In this section, an "interested person" means

(a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a share of the company or any of its affiliates, or

(b) a director or an officer or a former director or officer of the company or any of its affiliates.

19(2) Upon application by an interested person, the Court may make an order as provided in subsection (3), in every such event, if the Court is satisfied that

(a) a governmental authority, whether it is legally constituted or not, in any jurisdiction outside Canada,

(i) by or in connection with a nationalization, expropriation, confiscation, coercion, force or duress or similar action, or

(ii) by or in connection with the imposition of any confiscatory tax, assessment or other governmental charge,

has taken or seized any shares or other interest in the company, or any property or assets owned by or under the control or direction or in the custody of the company, or in respect of which the company acts as trustee or agent; or

(b) there exists an emergency condition in any jurisdiction outside Canada where the company carries on business or in which is situated, or from which is controlled or directed, any property or assets,

(i) owned by the company,

(ii) controlled by or under the direction or in the custody of the company, or

(iii) in respect of which the company acts as trustee or agent,

and including any of the foregoing assets and property that may, for the time being, be in the custody of, or controlled or directed by, any affiliate or subsidiary of the company.

19(3) In connection with an application under this section, the Court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,

(a) that the company disregard the taking or seizure and continue to treat the person who would have held shares or any other interest in the company, but for the taking or seizure of the shares or other interest, as continuing to hold the shares or other interest;

(b) that the company treat the persons believed by the company to have held the direct or indirect beneficial interests in the shares or other interests in the company as the holders of those shares or other interests;

(c) that any shares of or other interests in the company vest in such trustees as the Court may appoint upon such trusts and for such purposes as the Court may determine;

(d) that the company shall disregard, as it relates to the company or any shares or other interests in the company, or any property or assets owned by or under the direction or control of the company, or in respect of which the company acts as trustee, any judgment, decree, declaration, order or other executory pronouncement of a judicial, quasi-judicial, administrative, executive or other body, or any legislative or regulatory enactment made in a jurisdiction outside of Canada; and

(e) for such additional relief as the Court considers just and equitable.

14 Section 20 of the Act is repealed and the following is substituted:

20(1) The company shall not receive deposits from or lend money to the public, either within or without the Province.

20(2) The prohibition against receiving deposits from or lending money to the public as set forth in subsection (1) shall not prevent the company from receiving or lending money in the course of carrying out the terms, or furthering the interests, of any trust of which it is trustee or of any trust deed, settlement, declaration, mortgage, agreement, indenture, conveyance, estate, will, codicil, probate, letters of administration, judgment, order or appointment or any document whatsoever under which it is administrator, executor, committee, assignee, liquidator, receiver, registrar, mandator, guardian, transfer agent, protector, custodian trustee or curator.

20(3) The company shall not carry on the business of an insurance company.

20(4) The company may, in fulfilling any specific direction or permission of a court or of an instrument appointing the company as trustee or fiduciary, purchase, hold or sell shares in itself or any affiliate of the company provided however that a general power to invest shall not be considered to be specific direction or permission for the purposes of this subsection.

20(5) The company shall not

(a) accept an appointment to act as trustee under a trust, the intended settlor of which is at the time of such proposed appointment a resident of Canada; or

(b) transact a trust business, act in a fiduciary capacity or administer trusts in the Province or elsewhere in Canada,

unless the company is authorized to do so by the Minister but subject, nevertheless, to such conditions as may be prescribed from time to time by the Minister.

20(6) No trust is invalid by reason only of a contravention by the company of subsection (5).

20(7) Notwithstanding subsection (5), the company may

(a) make or maintain professional contact with counsel and attorneys, and accountants or bookkeepers carrying on business within the Province or elsewhere in Canada;

(b) hold, within the Province or elsewhere in Canada, meetings of its directors or shareholders;

(c) make any application to the Director, the Minister or to a court in accordance with this Act, the Business Corporations Act or the laws of the Province or any other jurisdiction in Canada; or

(d) act as trustee of any trust which is stated to be subject to the laws of the Province.

20(8) The prohibition against transacting a trust business, acting in a fiduciary capacity or administering trusts in New Brunswick or elsewhere in Canada as set forth in paragraph (5)(b) shall not prevent the company from administering in the Province trusts as a trustee or acting in another fiduciary capacity with or for persons when there are reasonable grounds for believing that an emergency condition exists. A statutory declaration under the Evidence Act or the Canada Evidence Act of an officer of the company or of another person having knowledge, whether actual or based on information and belief, that an emergency condition exists, shall forthwith be filed with the Minister.

20(9) Following the filing with the Minister of the statutory declaration provided for in subsection (8), the Minister may prescribe conditions from time to time for the continuing administration of the trusts or acting in a fiduciary capacity mentioned in such subsection.