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AR 149/90 REGIONAL AIRPORTS AUTHORITIES REGULATION

(Consolidated up to 85/2016)

ALBERTA REGULATION 149/90

Regional Airports Authorities Act

REGIONAL AIRPORTS AUTHORITIES REGULATION

Table of Contents

                1      Interpretation

Part 1
Organization and Structure of Authorities

                2      Name of authority

                3      Use of name

                4      Cessation of appointers functions

                5      Additional petition requirements

                6      Amendment of articles pursuant to Court order

                7      Restatement of articles

Part 2
Directors, Members and Officers

Directors

                8      Appointments

                9      Term of office

              10      Cessation of office and revocation

              11      Qualifications for directors

              12      Meetings

Liabilities

              13      General liability provisions

              14      Duty of care of directors and officers

              15      Liability of directors

              16      Disclosure by directors and officers in relation to contracts

              17      Dissent

              18      Indemnification

Part 3
Further Conflict of Interest Provisions

              19      Requirement for policies

              20      Financial assistance

              21      Directors and affiliates

              22      Advantage based on confidential information

              23      Insider trading

Part 4
Records

              24      Preparation and maintenance of additional records

              25      Examination and provision of records

              26      Form of records

              27      Preservation of records

Part 5
Disclosure and Relations with Appointers and the Public

              28      Public meetings

              29      Performance review

              30      Reviewers right to information

              31      Annual financial statements

              32      Audit committee

              33      Notification of error or misstatement

              34      Auditor

              35      Attendance of auditor or former auditor at meetings

              36      Resignation and replacement of auditor

              37      Auditors right to information

              38      Qualified privilege

Part 6
Corporate Finance

              39      Options and other rights to acquire debt obligations

              40      Repayment, acquisition and reissue of debt obligations

Part 7
Security Certificates, Registers and Transfers

Division 1
Interpretation and General Provisions

              41      Application and interpretation

              42      Security certificates

              43      Securities records

              44      Dealings with registered holders and transmission on death

              45      Overissue

              46      Burden of proof in actions

              47      Fungible nature of securities

Division 2
Issue

              48      Notice of defects

              49      Staleness as notice of defect

              50      Unauthorized signature

              51      Completion or alteration

              52      Warranties of agents

Division 3
Purchase

              53      Title of purchaser

              54      Deemed notice of adverse claims

              55      Staleness as notice of adverse claims

              56      Warranties

              57      Right to compel endorsement

              58      Endorsement

              59      Effect of endorsement without delivery

              60      Endorsement in bearer form

              61      Effect of unauthorized endorsement

              62      Warranties of guarantees of signatures or endorsements

              63      Constructive delivery and constructive ownership

              64      Delivery of security

              65      Right to reclaim possession of security

              66      Right to requisites of transfer

              67      Seizure of security

              68      Liability of agent or bailee selling, etc. securities

              69      Duty to register transfer

              70      Assurance that endorsement is effective

              71      Limited duty of inquiry as to adverse claims

              72      Limitation of authoritys liability

              73      Rights and obligations on loss or theft

              74      Rights, duties, etc. of authoritys agent

Part 8
Corporate Borrowing - Trust Indentures

              75      Interpretation and application

              76      Distribution to the public

              77      Conflict of interest

              78      Qualification of trustee

              79      List of holders

              80      Evidence of compliance

              81      Contents of declaration

              82      Further evidence of compliance

              83      Requirement of evidence of compliance

              84      Notice of default

              85      Trustees duty of care

              86      Trustees reliance on statements

              87      Inability to obtain relief from duties

Part 9
Receivers and Receiver-managers

              88      Appointment of receiver or receiver‑manager

              89      Confirmation of appointment

              90      Functions of receiver

              91      Functions of receiver‑manager

              92      Directors powers during receiver‑managership

              93      Court directions

              94      Duty of care

              95      Powers of the Court

              96      Duties

              97      Regard by Court to purposes and public interest

Part 10
Liquidation and Dissolution

              98      Definition and application

              99      Stay of proceedings

            100      Voluntary liquidation and dissolution

            101      Compulsory liquidation and dissolution

            102      Show cause order

            103      Powers of the Court

            104      Effect of liquidation order

            105      Appointment of liquidator

            106      Duties of liquidator

            107      Powers of liquidator

            108      Final accounts and discharge of liquidator

            109      Final distribution of assets

            110      Custody of records after dissolution

            111      Continuation of actions after dissolution

            112      Unknown claimants

            113      Property not disposed of

Part 11
Court‑approved Arrangements

            114      Definition

            115      Application to Court

            116      Last resort

            117      Meetings

            118      Hearing and decision

            119      Filing of order

            120      Date of effectiveness

            121      Effect

Part 12
Investigation

            122      Court order for investigation

            123      Powers of the Court

            124      Powers of inspector

            125      Hearings by inspector

            126      Evidence

            127      Absolute privilege

            128      Solicitor‑client privilege

            129      Inspectors report as evidence

Part 13
Remedies and Prosecutions

            130      Definitions

            131      Derivative action

            132      Powers of the Court

            133      Relief by Court on ground of oppression or unfairness

            134      Court approval of stay, dismissal, discontinuance or settlement

            135      Court order to rectify records

            136      Compliance or restraining order

            137      Application to Court

            138      Offences relating to reports, returns, etc.

            139      Order to comply

            140      Limitation on prosecutions

            141      Effect of prosecution on civil remedy

Part 14
Miscellaneous


            142      Fees

            143      Forms

            144      Registrar provisions

         144.1      Expiry

            145      Coming into force

            146      Application of Part 7, Division 2, B.C.A.

Schedules

Interpretation

1   In this Regulation and, where applicable, for the purposes of the Act,

                               (a)    “Act” means the Regional Airports Authorities Act;

                              (b)    “affiliate” means, in relation to an authority,

                                        (i)    a subsidiary of the authority,

                                      (ii)    an associate of the authority described in clause (d)(i) or (iii), or

                                     (iii)    a person who has entered into a partnership or joint venture with the authority or with any of its subsidiaries;

                               (c)    “appointers” does not include a body that has ceased to be an appointer by virtue of section 4;

                              (d)    “associate” means, in relation to a person,

                                        (i)    a corporation of which that person beneficially owns or controls, directly or indirectly,

                                              (A)    shares or securities currently convertible into shares carrying more than 10% of the voting rights under all circumstances or under any circumstances that have occurred and are continuing, or

                                              (B)    a currently exercisable option or right to purchase those shares or those convertible securities,

                                      (ii)    a partner of that person acting on behalf of the partnership of which they are partners,

                                     (iii)    a trust or estate in which that person has a substantial interest or in respect of which he serves as a trustee or in a similar capacity,

                                     (iv)    a spouse or adult interdependent partner of that person, or

                                       (v)    a relative of that person or of his spouse or adult interdependent partner if that relative has the same residence as that person;

                               (e)    “auditor” means the external auditor of an authority and includes any individual who is responsible for conducting an external audit of the authority’s financial statements on behalf of its external auditor;

                               (f)    “beneficially own” includes own through a trustee, legal representative, agent or other intermediary;

                               (g)    “Court” means the Court of Queen’s Bench;

                              (h)    “debt obligation” means a bond, debenture, note or other evidence of indebtedness or guarantee, whether secured or unsecured, and includes a certificate evidencing a debt obligation;

                               (i)    “person” includes a partnership or other firm of unincorporated persons;

                               (j)    “reviewer” means a person making a review under section 29 of the Act;

                              (k)    “security holder”, in relation to an authority, means a holder of any debt obligations issued by an authority;

                               (l)    “security interest” means an interest in or charge on property of an authority to secure payment of a debt or performance of any other obligation of the authority;

                             (m)    “send” includes deliver.

AR 149/90 s1;194/98;109/2003

Part 1
Organization and Structure
of Authorities

Name of authority

2   The name of an authority must end with the phrase “Airport Authority” or “Airports Authority” and must not include the word “Limited”, “Limitee”, “Incorporated”, “Incorporee” or “Corporation” or any abbreviation of any such word.

AR 149/90 s2

Use of name

3   An authority shall ensure that its name is set out in legible characters on

                               (a)    all its contracts, invoices, negotiable instruments and orders for services, and

                              (b)    all publications, notices and advertisements required under the Act or this Regulation.

AR 149/90 s3;194/98

Cessation of appointers functions

4(1)  Notwithstanding anything in this Regulation or in an authority’s articles, a body named in the articles as an appointer ceases to be an appointer only in accordance with this section. 

(2)  A body ceases to be an appointer if,

                               (a)    in the case of a body corporate, it is dissolved or wound up or its existence is otherwise terminated or it resigns its position as appointer, or

                              (b)    in the case of the Government of Canada as represented by the Minister of Transport (Canada) or the Government of Alberta as represented by the Minister, the appropriate Minister resigns the Government’s position as appointer.

(3)  A body corporate that is an appointer may resign its position as appointer by sending the authority a certified copy of a resolution of its governing body to that effect.

(3.1)  The Government of Canada and the Government of Alberta may resign their position as appointers by means of a notice to that effect from the appropriate Minister to the authority.

(3.2)  On receiving a resolution under subsection (3) or a notice under subsection (3.1), the directors shall, as soon as is reasonably practicable, amend the authority’s articles to reflect the resignation.

(4)  Notwithstanding subsection (3), the resignation becomes effective and the body ceases to be an appointer on the effective date when the authority’s articles are amended to remove the body’s name and address as appointer.

(5)  Where the resignation, as a result of the application of section 8(5) and but for this subsection, would cause the number of directors to fall below 8, then, unless at the same time all that appointer’s functions in relation to appointing directors are assumed by a new or another appointer, the authority may not amend its articles so as to make the resignation effective before one year after the certified copy of the resolution referred to in subsection (3) or the notice under subsection (3.1) is received by the authority.

AR 149/90 s4;194/98

Additional petition requirements

5(1)  With reference to section 4(3)(k) of the Act, the petition must

                               (a)    specify the name and the postal address of each of the incorporators,

                              (b)    either specify the names and addresses of, or establish a means of identifying or a procedure for selecting, the bodies to whom, subject to section 109, the authority’s assets are to be distributed on its dissolution, winding‑up or termination and after the discharge of its liabilities,

                               (c)    specify any restrictions on the number of securities or any particular form of securities that the authority is permitted to issue, and

                              (d)    specify any restrictions on the right to transfer any of the securities issued by the authority. 

(2)  The bodies referred to in subsection (1)(b) must be public bodies or bodies exempt from the payment of income tax. 

(3)  Subsection (1)(c) does not require the petition to specify the prohibition against the issue of shares contained in section 36(2) of the Act.

AR 149/90 s5

Amendment of articles pursuant to Court order

6(1)  A special resolution is not required where an authority amends its articles in compliance with an order of the Court or the Court amends them, and section 11(2) and (3) of the Act do not apply with respect to the amendment.

(2)  The authority shall send a certified copy of the Court order and of the amendment to the Registrar and to each of the appointers.

AR 149/90 s6

Restatement of articles

7(1)  An authority

                               (a)    may, at any time, and

                              (b)    shall, when so directed by the Registrar and within the period specified in the direction,

restate articles that have previously been amended by providing the restated articles to the Registrar.

(2)  Restated articles may not contain any amendments to the articles other than amendments that have previously been filed.

(3)  On the Registrar’s filing restated articles that comply with this section, the restated articles supersede the original articles and all amendments to them.

AR 149/90 s7

Part 2
Directors, Members and Officers

Directors

Appointments

8(1)  Subject to this section, the articles of an authority must provide for each appointment to its board to be made by its appointers or by one or more of its appointers. 

(2)  The articles may make provision so that either 1 or 2 of the directors sitting on the board at any given time are appointed by those directors who hold office at the time of the appointment.

(3)  Subject to subsection (4), the articles must provide for a vacancy on the board to be filled by those appointers or by the current directors, as the case may be, who at the time of the filling of the vacancy have the right under the articles to make the appointment that has been vacated. 

(4)  The articles may provide for the filling by the board of a vacancy in an appointment that is to be filled by appointers under subsection (3), but such an appointment by the board under this subsection is effective only until the subsequent appointment by those appointers takes effect and in any case only for the duration of the replaced director’s term of office. 

(5)  Where a body ceases to be an appointer, an appointment made by it to a directorship,

                               (a)    if the power to make that appointment immediately before the cessation lay solely in that body and was not shared with another appointer, automatically terminates unless the other directors pass a resolution continuing the director’s appointment, and

                              (b)    if that power was so shared, continues as if the body were still an appointer. 

(6)  Where an appointment is continued by a resolution referred to in subsection (5)(a), the appointment remains effective only until its term expires or until a new appointment is made in accordance with the articles, as amended to reflect the replacement of the appointer, or until one year after the resolution, whichever is earliest.

(7)  Notwithstanding subsection (5), where a body ceases to be an appointer and, as a result of the application of subsection (5) and but for this subsection, the number of directors would fall below 8, the directors appointed by the body continue in office until one year after that event occurs or until other directors are appointed and that shortfall no longer exists, whichever is earlier.

(8)  The one‑year extension under subsection (7) applies notwithstanding that the term of a director’s office might otherwise expire during that period.

AR 149/90 s8;194/98

Term of office

9(1)  The term of 4 years referred to in section 13(2) of the Act may be reduced

                               (a)    where a director ceases to hold office or has his appointment revoked as mentioned in section 10,

                              (b)    in respect of the initial round of appointments to the board at the authority’s formation, or

                               (c)    in respect of the initial appointment to a newly created additional office as director. 

(2)  In serving a term of less than 4 years in circumstances referred to in subsection (1)(b) or (c), a person is not considered to have served a term of office for the purpose of determining under section 14(2) of the Act whether he served the initial 2 consecutive terms of office.

AR 149/90 s9

Cessation of office and revocation

10(1)  Subject to section 8, a director ceases to hold office as such when his term of office expires or if he previously resigns or does not meet the qualifications under section 11 or if his appointment is terminated by virtue of section 8 or is revoked. 

(2)  A director wishing to resign must send a written resignation to the authority and, where applicable, to the appointers that appointed him and the resignation becomes effective when received by the authority or at the time specified as the effective date in the resignation, whichever is later. 

(3)  The articles must provide that the appointers currently having the right to appoint a director or, in the case of a director appointed by directors, the board, has the right to revoke the appointment in accordance with the procedures set out in the articles and that no other person has that right.

AR 149/90 s10

Qualifications for directors

11(1)  Notwithstanding anything in this Regulation except subsection (2), a person is not qualified to be or to continue to be a director

                               (a)    unless he is an individual of adult age;

                              (b)    if he has the status of a bankrupt;

                               (c)    if he is a member of Parliament, of the Senate, of any Legislative Assembly or of the council of a municipality;

                              (d)    if he is a person employed, whether under a contract of service or a contract for services, in the public service of any national, provincial, state, regional or local government;

                               (e)    if, within the immediately preceding 5 years, he has been convicted of

                                        (i)    an indictable offence that is of a kind that is related to the qualifications, functions or duties of a corporate director, or

                                      (ii)    an offence against the Act,

                                       and either the time for making an appeal has expired without the appeal’s having been made or the appeal has been finally disposed of by the courts or abandoned;

                               (f)    if he is a dependent adult as defined in the Dependent Adults Act or is the subject of a certificate of incapacity under that Act;

                               (g)    if he is a formal patient as defined in the Mental Health Act;

                              (h)    if he has been found to be a person of unsound mind by a court elsewhere than in Alberta;

                               (i)    if he contravenes section 21 or his associate engages in any activity that, if performed by that person himself, would be a contravention of section 21(1), (2) or (3);

                               (j)    if, being a director of an authority, he has failed to attend the type or number of board or committee meetings, or a combination thereof, specified in the articles; 

                              (k)    if his membership on the board results or would result in a contravention of section 14(4) of the Act.

(2)  If 2 or more persons would, but for this subsection, be disqualified by virtue of subsection (1)(k), the person or persons who are actually disqualified shall be ascertained according to the inverse chronological order of the effective dates of their appointments.

AR 149/90 s11;248/97

Meetings

12(1)  Notwithstanding any other law, an authority’s by‑laws may provide that

                               (a)    a director may participate in a meeting of directors or of a committee of directors, or

                              (b)    such a meeting may be held,

by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other, and, for the purposes of the Act, the directors participating by those means are deemed to be present at the meeting. 

(2)  The text of a special resolution may be amended at a board meeting if the amendment corrects a manifest error or is not material.

AR 149/90 s12

Liabilities

General liability provisions

13(1)  Sections 13 to 18 do not operate so as to limit the duties and liabilities that a director or officer of an authority may have under any other law.

(2)  No provision in a contract or the articles or by‑laws or a resolution of an authority relieves a director or officer from the duty to act in accordance with the Act and this Regulation or relieves him from liability for a breach of that duty.

(3)  Section 16(d) of the Interpretation Act does not apply to members of an authority, but, without limiting any liability that they may have at law in their capacity as directors, individual members of an authority in their capacity as such members are exempt from personal liability for the debts, obligations and acts of the authority.

AR 149/90 s13

Duty of care of directors and officers

14(1)  A director or officer of an authority, in exercising his powers and performing his duties, shall

                               (a)    act honestly, in good faith and with a view to the best interests of the authority,

                              (b)    exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, and

                               (c)    comply with the articles and by‑laws of the authority.

(2)  In considering whether a particular transaction or course of action is in the best interests of the authority, a director or officer shall have due regard to the purposes of an authority.

(3)  A director or officer is not liable under subsection (1) if he relies in good faith on

                               (a)    financial statements of the authority represented by any of its officers qualified to make such a representation or in a written report of its auditor as reflecting fairly the financial condition of the authority or the results of its operations in accordance with generally accepted accounting principles, or

                              (b)    the opinion or report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by him. 

(4)  Nothing in subsection (1) or (2) prevents a director appointed by an appointer or by 2 or more appointers jointly from reporting to that appointer or those appointers in general terms information on the undertaking and affairs of the authority that is not confidential to the authority or any affiliate.

AR 149/90 s14

Liability of directors

15(1)  Where the directors of an authority pass a resolution authorizing

                               (a)    the provision of any remuneration, allowances or expenses to directors in contravention of the by‑laws,

                              (b)    the payment of an indemnity described in section 18 in contravention of that section,

                               (c)    any payment that contravenes section 20 of this Regulation or section 37 of the Act, or 

                              (d)    any other illegal act with respect to the payment of compensation to a director or officer,

the directors who voted for or consented to the resolution are jointly and severally liable to restore to the authority any amount so paid and the value of any property so provided and not otherwise recovered by the authority.

(2)  A director who has satisfied a judgment rendered under this section is entitled to contribution from all other directors who by virtue of subsection (1) are also liable.

(3)  On an application by the authority, by a director who is liable under subsection (1) or by any person who was a creditor of the authority at the time of the payment or other act, the Court may make an order, if it considers it equitable to do so,

                               (a)    to compel a recipient to restore to the authority any money or other property that was improperly paid or provided to him in connection with any of the circumstances specified in subsection (1)(a) to (d), or

                              (b)    to make such other provision as it considers fit.

(4)  A director is not liable under this section if

                               (a)    he proves that he did not know and could not reasonably have known that the facts underlying the act authorized by the resolution were such as to occasion a contravention of the relevant law or by‑law, as the case may be, or

                              (b)    he relies in good faith on financial statements or an opinion, report or representation referred to in section 14(3).

(5)  An action to enforce any liability imposed by this section may not be commenced after 2 years from the date of the resolution authorizing the action complained of.

AR 149/90 s15

Disclosure by directors and officers in relation to contracts

16(1)  This section applies to a director or an officer of an authority

                               (a)    who is, or whose associate is, a party to a material contract or proposed material contract with the authority or its affiliate, or

                              (b)    who is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the authority or its affiliate.

(2)  A director or officer described in subsection (1) shall, forthwith after becoming aware of the facts that bring him within the application of subsection (1), both disclose in writing to the authority and to each of the appointers in detail and request to have entered in the minutes of a board meeting,

                               (a)    the nature of the transaction or proposed transaction,

                              (b)    the nature and extent of his or his associate’s interest in it and in the contract, and

                               (c)    where applicable, his relationship with the associate.

(3)  The director or officer shall not vote on any resolution to approve the contract or proposed contract or be present while any such vote is being conducted unless the contract

                               (a)    relates to remuneration, indemnities, insurance or other benefits or allowances or expenses to be provided generally to all or a substantial proportion of the authority’s directors or officers, or

                              (b)    is a contract with a subsidiary.

(4)  Where the director or officer complied with subsection (2) and has not contravened subsection (3) and the contract or proposed contract was approved by the board and was reasonable and fair to the authority at the time it was so approved,

                               (a)    the contract is neither void nor voidable by reason only of the circumstances bringing that director or officer within the application of subsection (1) or by reason only that he was present at or was counted to determine the presence of a quorum at any meeting that authorized the contract, and

                              (b)    if a profit accrues to him as a result of the making of the contract, he is not liable to account to the authority for that profit by reason only of the circumstances bringing him within the application of subsection (1).

(5)  Notwithstanding subsection (2), for the purposes of this section, a general notice by the director or officer is a sufficient disclosure of interest in relation to a contract made between the authority or its affiliate and a person in which the director or officer has a material interest or of which he is a director or officer if

                               (a)    the notice declares that he is a director or officer of or has a material interest in the person and is to be regarded as interested in any contract made or to be made by the authority or its affiliate with that person, and states the general nature of the transactions likely to be covered by the notice and the nature and extent of his interest,

                              (b)    at the time disclosure would otherwise be required by subsection (2), the extent of his interest in that person is not greater than that stated in the notice, and

                               (c)    the notice is given within the 6‑month period immediately preceding the time at which disclosure would otherwise be required by subsection (2). 

(6)  If a person required to comply with this section fails to do so, the Court may, on the application of the authority or a director, set aside the contract on any terms it thinks fit.

(7)  Nothing in this section entitles any person to enter into any transaction into which he is not otherwise legally entitled to enter.

(8)  The authority shall maintain a register of disclosures made under this section.

AR 149/90 s16;194/98

Dissent

17(1)  A director who was present at a meeting of the board or of a committee of directors is deemed to have consented to any resolution passed or action taken at the meeting, unless

                               (a)    he requested that his abstention or dissent be, or his abstention or dissent is, entered in the minutes of the meeting,

                              (b)    he provided his written dissent to the secretary of the meeting before the meeting was adjourned,

                               (c)    he sent his dissent by registered mail or delivered it to the authority’s registered office immediately after the meeting was adjourned, or

                              (d)    he otherwise proves that he did not consent to the resolution or action.

(2)  A director who voted for a resolution is not entitled to dissent under subsection (1).

(3)  On receipt of a written dissent, the authority shall

                               (a)    have the date, time and place it was received certified on it, and

                              (b)    have it placed and kept with the minutes of the meeting at which the resolution was passed or the action taken.

AR 149/90 s17

Indemnification

18(1)  An authority may indemnify a person who

                               (a)    is a present or former director or officer of the authority, or

                              (b)    acts or acted at the authority’s request as a director or officer of a corporation (in this section referred to as the “other corporation”) of which the authority is or was a shareholder or creditor

and that person’s heirs and legal representatives against costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by that person with respect to a civil, criminal or administrative action or proceeding to which he is made a party by reason of his being or having been such a director or officer, but only in accordance with this section.

(2)  Notwithstanding anything in this section, the authority may indemnify the person under subsection (1) only if

                               (a)    he acted honestly and in good faith,

                              (b)    he acted with a view to the best interests,

                                        (i)    if he is a person referred to in subsection (1)(a), of the authority, or

                                      (ii)    if he is a person referred to in subsection (1)(b),

                                              (A)    of the other corporation, and

                                              (B)    subject to his prior obligations to the other corporation, of the authority,

                                  and

                               (c)    in the case of a criminal or administrative action or proceeding, he had reasonable grounds for believing that the conduct was lawful.

(3)  An authority may not indemnify under subsection (1) a person referred to in that subsection in respect of an action to which he is made a party brought by or on behalf of the authority or the other corporation to procure a judgment in its favour except with the approval of the Court. 

(4)  Notwithstanding anything in this section except subsection (2), a person is entitled to indemnity from the authority in respect of all costs, charges and expenses reasonably incurred by him with respect to the defence of any civil, criminal or administrative action or proceeding to which he is made a party by reason of his being or having been a director or officer referred to in subsection (1) if he was substantially successful on the merits in his defence of the action or proceeding and he is fairly and reasonably entitled to indemnity.

(5)  An authority may purchase and maintain insurance for the benefit of any person acting in a capacity referred to in subsection (1) against any liability incurred by him in that capacity, but not if the insurance would cover liability relating to his failure to comply with subsection (2)(a) or (b).

(6)  An authority or a person referred to in subsection (1) may apply to the Court for an order approving an indemnity under this section and the Court may so order and make any further order it thinks fit.

(7)  On an application under subsection (6), the Court may order notice to be given to any interested person and that person is entitled to appear and be heard in person or by counsel.

AR 149/90 s18;194/98

Part 3
Further Conflict of Interest Provisions

Requirement for policies

19(1)  An authority shall have policies established or approved by its board designed to prevent real or perceived conflicts between the interests on the one hand of the authority and its affiliates and on the other hand of

                               (a)    the directors, officers and employees of the authority and its subsidiaries,

                              (b)    directors of affiliates other than subsidiaries, who are elected or appointed as such by the authority or by any of its subsidiaries,

                               (c)    persons holding shares issued by an affiliate that are beneficially owned by the authority,

                              (d)    trustees or other persons representing the authority in relation to a trust or estate in which the authority has a substantial interest, and

                               (e)    persons representing the authority or its subsidiary in relation to a partnership or joint venture into which it has entered.

(2)  The authority shall send to the Registrar and to each of the appointers a copy of the policies and of each amendment to them, forthwith after the policies or amendment is established or approved by the board. 

(3)  The authority shall make a copy of the policies, with all amendments to date, available for inspection by persons attending a meeting held under section 26 or 27 of the Act.

AR 149/90 s19

Financial assistance

20(1)  An authority shall not, directly or indirectly, give financial assistance by means of a loan, guarantee or otherwise to

                               (a)    a director of the authority,

                              (b)    an individual who is a director or shareholder of its affiliate, or

                               (c)    the associate of any person referred to in clause (a) or (b).

(2)  Subsection (1) does not prohibit financial assistance to any person

                               (a)    who is an employee of the authority or of any of its subsidiaries if the assistance is given in that capacity and is for the purpose of

                                        (i)    enabling or assisting that employee to purchase or erect living accommodation for his own occupation, or

                                      (ii)    assisting in the employee’s education or training,

                                  or

                              (b)    on account of expenditures incurred or to be incurred by that person on behalf of the authority.

AR 149/90 s20

Directors and affiliates

21(1)  A director of an authority or of its subsidiary shall not acquire or hold any shares issued by an affiliate of the authority. 

(2)  A director of an authority shall not act as a director of an affiliate unless he has been elected or appointed to the board of directors of the affiliate pursuant to a special resolution of the authority. 

(3)  A director of an authority shall not act as an officer of an affiliate unless so authorized by a special resolution of the authority. 

(4)  A director of a subsidiary of an authority shall not act as a director or officer of any other affiliate of the authority unless so authorized by a special resolution of the authority.

(5)  A person does not contravene subsection (1) if he acquires the shares by transmission or otherwise by operation of law and holds them for a period not exceeding 6 months.

AR 149/90 s21

Advantage based on confidential information

22   A director or an officer of an authority or of its subsidiary shall not enter or induce an associate of his to enter into a transaction in which use would be made of information that is confidential to the authority or to any affiliate in order directly or indirectly to obtain a benefit or advantage for himself, an associate or any other person.

AR 149/90 s22

Insider trading

23(1)  In this section, “insider” means, with respect to an authority,

                               (a)    a director or an officer of the authority or of any corporation that is an insider of the authority,

                              (b)    a person employed by the authority or retained by it on a professional or consulting basis,

                               (c)    an affiliate of the authority,

                              (d)    a person who receives specific confidential information from a person described in this subsection or in subsection (2) and who knows that the person giving the information is a person described in this subsection or in subsection (2), or

                               (e)    a person who receives specific confidential information from the person first mentioned in clause (d) and who knows that that person received that information in the manner described in that clause.

(2)  For the purposes of this section, if

                               (a)    a corporation becomes an insider of an authority, or

                              (b)    an authority becomes an insider of a corporation under Part 10 of the Business Corporations Act or acquires all or substantially all of its property,

a director or an officer of the corporation is deemed to have been an insider of the authority for the previous 6 months or for any shorter period during which he was a director or an officer of the corporation. 

(3)  An insider who, in connection with a transaction in a security issued by an authority or by any of its affiliates, makes use of any specific confidential information for his own benefit or advantage or that of any associate of his that, if generally known, might reasonably be expected to affect materially the value of the security

                               (a)    is liable to compensate any person for any direct loss suffered by that person as a result of the transaction, unless the information was known or in the exercise of reasonable diligence should have been known to that person at the time of the transaction, and

                              (b)    is accountable to the authority for any direct benefit or advantage received or receivable by the insider as a result of the transaction.

(4)  An action to enforce a right created by subsection (3) may be commenced only within 2 years after the date of completion of the transaction that gave rise to the cause of action.

AR 149/90 s23

Part 4
Records

Preparation and maintenance of additional records

24   The following records are prescribed for the purposes of section 25 of the Act: 

                               (a)    a securities register complying with section 43;

                              (b)    the register of disclosures maintained under section 16(8).

AR 149/90 s24

Examination and provision of records

25   The records prescribed for the purposes of section 34(1)(e) of the Act are the registers referred to in section 24.

AR 149/90 s25

Form of records

26(1)  All registers and other records required by the Act or this Regulation to be prepared and maintained may be in a bound or loose‑leaf form or in a photographic film 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 legible written form within a reasonable time. 

(2)  If a person is entitled to examine any register or record that is maintained by an authority in a form other than a written form and makes a request of the authority to do so, the authority shall

                               (a)    make available to that person within a reasonable time a reproduction of the text of the register or record in legible written form, or

                              (b)    provide facilities to enable that person to examine the text of the register or record in a legible written form otherwise than by providing a reproduction of that text,

and shall allow that person to make copies of that register or record. 

(3)  An authority shall take reasonable precautions to

                               (a)    prevent loss or destruction of,

                              (b)    prevent falsification of entries in, and

                               (c)    facilitate detection and correction of inaccuracies in,

the registers and other records required by the Act or this Regulation to be prepared and maintained.

AR 149/90 s26

Preservation of records

27   An authority shall keep information relating to a person in possession of a security that is entered in the securities register referred to in section 24(a) for a period of at least 7 years after that person ceases to be in possession of the security.

AR 149/90 s27

Part 5
Disclosure and Relations with Appointers and the Public

Public meetings

28   The prior notice required for a public meeting by section 26(2) of the Act must be given

                               (a)    in prominent display advertisements in at least 2 consecutive issues of one or more daily newspapers whose circulation coverage or combined coverage generally encompasses all the places where the principal offices of the appointers that are bodies corporate are located, and

                              (b)    in the form of a notice kept posted at a prominent location at each airport for which the authority is responsible during the whole of the 30 days prior to the meeting.

AR 149/90 s28;194/98

Performance review

29(1)  For the purposes of section 29(1) of the Act,

                               (a)    the period prescribed is 5 years, with the first 5‑year period beginning on the date on which the authority first manages and operates an airport,

                              (b)    “independent” shall be construed in accordance with section 34(4).

(2)  The report under section 29 of the Act must include statements by or opinions of the reviewer describing or dealing with

                               (a)    the terms of reference of the review, including its scope, extent and nature,

                              (b)    the extent to which the authority was operating

                                        (i)    a safe and efficient service to the public, and

                                      (ii)    an efficiently run undertaking in accordance with its business plans,

                               (c)    in relation to the authority and its subsidiaries, the extent to which their financial and management control and information systems and management practices were maintained in a manner that provided reasonable assurance that

                                        (i)    the assets of each such corporation were safeguarded and controlled, and

                                      (ii)    the financial, human and physical resources of each such corporation were managed economically and efficiently and its operations carried out effectively,

                              (d)    any further information that is required by a special resolution of the authority, and

                               (e)    any concerns or qualifications that the reviewer has with respect to any matter described in this subsection.

AR 149/90 s29;39/95

Reviewers right to information

30(1)  On the demand of the reviewer, a present or former director, officer, employee or agent or the auditor or a former auditor of the authority shall furnish

                               (a)    any information and explanations, and

                              (b)    any access to records, books, accounts and other documents of the authority or any of its subsidiaries

that the reviewer reasonably considers to be necessary to enable him to make the review and report required by section 29 of the Act and that that person is reasonably able to furnish. 

(2)  On the demand of the reviewer, the directors shall

                               (a)    to the extent that they are reasonably able to do so, obtain from the present or former directors, officers, employees, agents or auditors of any affiliate of the authority the information and explanations that those persons are reasonably able to furnish and that the reviewer reasonably considers to be necessary to enable him to make his review and report, and

                              (b)    furnish the information and explanations so obtained to the reviewer.

(3)  The reviewer’s report has qualified privilege. 

(4)  The reviewer may reasonably rely on any report made by an auditor.

AR 149/90 s30

Annual financial statements

31   The annual financial statements required by section 30 of the Act must show, as notations to them, in respect of the authority and each of its subsidiaries separately and in respect of the fiscal year in question, separately as between directors of the corporation and those officers of the corporation who are not directors of it, the aggregate amount provided to all those directors and officers

                               (a)    as remuneration, and

                              (b)    separately, as reimbursement or allowance for expenses incurred on its business or undertaking and affairs.

AR 149/90 s31

Audit committee

32(1)  The board shall establish and appoint an audit committee for the authority consisting of not fewer than 3 directors, a majority of whom are not officers or employees of the authority or of any of its affiliates.

(2)  The quorum for an audit committee meeting is a majority of the number of audit committee members appointed, but an officer or employee of the authority or of an affiliate does not form part of a quorum. 

(3)  The audit committee shall review the financial statements of the authority, including any interim ones, before they are approved by the board.

(4)  The auditor is entitled to receive notice of every meeting of the audit committee and, at the expense of the authority, to attend and be heard at each meeting, and, if so requested by a member of the audit committee, shall attend meetings of the committee.

(5)  The auditor or a member of the audit committee may call a meeting of the audit committee.

AR 149/90 s32

Notification of error or misstatement

33(1)  A director or an officer of an authority shall forthwith notify the audit committee and the auditor of any error or misstatement of which he becomes aware in a financial statement that the auditor or a former auditor has reported on.

(2)  If the auditor or a former auditor is notified or becomes aware of an error or misstatement in a financial statement on which he has reported and if in his opinion the error or misstatement is material, he shall inform each director accordingly, whereupon the director shall ensure that

                               (a)    a revised financial statement is prepared and issued, and

                              (b)    copies of the revised financial statement, with the auditor’s report on them, are provided to the Registrar and to each of the appointers.

(3)  A director or officer who knowingly contravenes this section is guilty of an offence and liable to a fine of not more than $5000.

AR 149/90 s33

Auditor

34(1)  The board shall appoint and ensure that at all times the authority has an auditor.

(2)  A person is not qualified to become, and shall not act or continue to act as, and shall not permit himself to be appointed as, the auditor, and the authority shall not knowingly permit any of those acts, unless that person is

                               (a)    an individual permitted by law to engage, not under the direct supervision of any other person, in an audit intended to be relied on by third parties, or

                              (b)    a partnership or other firm on whose behalf individuals referred to in clause (a) engage in such audits,

and unless that person is independent of the authority, of its affiliates and of the directors and officers of the authority and its affiliates.

(3)  Notwithstanding anything in the Business Corporations Act or any other law, a subsidiary of an authority must have an auditor. 

(4)  For the purposes of this section,

                               (a)    independence is a question of fact, and

                              (b)    a person is not independent if he or his associate

                                        (i)    is a partner, a director, an officer or an employee of the authority or of any of its affiliates or is a partner of any director, officer or employee of the authority or of any of its affiliates,

                                      (ii)    beneficially owns or controls, directly or indirectly, an interest in securities issued by the authority or by any of its affiliates,

                                     (iii)    has been a receiver, receiver‑manager, liquidator or trustee in bankruptcy of the authority or any of its affiliates within 2 years previous to his appointment as auditor of the authority, or

                                     (iv)    is or within those 2 years has been responsible for preparing the books or accounts of the authority or any of its subsidiaries.

(5)  An interested person may apply to the Court for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant.

AR 149/90 s34

Attendance of auditor or former auditor at meetings

35(1)  An authority shall send the auditor notice of every board meeting and of every meeting held under section 26 or 27 of the Act at the same time that directors are so notified. 

(2)  The auditor is entitled to attend and be heard at every board meeting on matters relating to his duties as auditor.

(3)  If a director gives written notice to the auditor or to a former auditor not less than 10 days before a board meeting, the auditor or former auditor shall attend that meeting. 

(4)  The auditor shall attend each meeting held under section 26 or 27 of the Act.

(5)  If a director or an appointer gives written notice to a former auditor not less than 10 days before a meeting to be held under section 27 of the Act, the former auditor shall attend that meeting.

(6)  An auditor or a former auditor who attends a meeting pursuant to this section

                               (a)    attends at the expense of the authority, and

                              (b)    shall answer questions at the meeting relating to his duties as auditor.

(7)  If the individual referred to in section 1(e) is unable to attend a meeting under this section, he may be represented by another individual auditor in his firm who is knowledgeable about the authority’s undertaking and affairs. 

(8)  A director or an appointer who sends a notice referred to in subsection (3) or (5) shall concurrently send a copy of the notice to the authority.

(9)  An auditor or former auditor who without reasonable cause contravenes subsection (3), (4) or (5) is liable to a fine of not more than $5000.

AR 149/90 s35

Resignation and replacement of auditor

36(1)  An auditor who

                               (a)    resigns, or

                              (b)    receives a notice or otherwise learns of a meeting called for the purpose of

                                        (i)    removing him from office, or

                                      (ii)    appointing another person to fill the office of auditor, whether because of resignation or removal of the incumbent auditor or because his term of office has expired or is about to expire,

is entitled to submit to the authority a written statement giving the reasons for his resignation or the reasons why he opposes any proposed action or resolution.

(2)  The authority shall forthwith send a copy of the statement referred to in subsection (1) to every director and appointer and, if a new auditor is to be appointed, the prospective auditor. 

(3)  A person shall not accept an appointment as or consent to be appointed as auditor if he is replacing an auditor who has resigned or been removed or whose term of office has expired or is about to expire until he has requested and received from that auditor a written statement of the circumstances and the reasons why, in that auditor’s opinion, he is to be replaced.

(4)  Notwithstanding subsection (3), a person otherwise qualified may accept appointment or consent to be appointed as auditor if, within 15 days after making the request referred to in that subsection, he has not received a reply.

(5)  An authority shall, forthwith after the initial appointment of an auditor and after each change in auditor, send a written notice of the new appointment to each of the appointers.

AR 149/90 s36

Auditors right to information

37(1)  On the demand of the auditor, a present or former director, officer, employee or agent of the authority or a former auditor shall furnish

                               (a)    any information and explanations, and

                              (b)    any access to records, documents, books, accounts and vouchers of the authority or any of its subsidiaries

that are, in the opinion of the auditor, necessary to enable him to make his examination and report on the annual financial statements and that that person is reasonably able to furnish.

(2)  On the demand of the auditor, the directors shall

                               (a)    to the extent that they are reasonably able to do so, obtain from the present or former directors, officers, employees, agents or auditors of any subsidiary of the authority the information and explanations that those persons are reasonably able to furnish and that are, in the opinion of the auditor, necessary to enable him to make his examination and report on the annual financial statements, and

                              (b)    furnish the information and explanations so obtained to the auditor.

AR 149/90 s37

Qualified privilege

38   A report made under the Act or this Regulation by the auditor or a former auditor of an authority has qualified privilege.

AR 149/90 s38

Part 6
Corporate Finance

Options and other rights to acquire debt obligations

39(1)  An authority may issue certificates, warrants or other evidences of conversion privileges, options or rights to acquire debt obligations of the authority, and shall set out their conditions

                               (a)    in the certificates, warrants or other evidences, or

                              (b)    in certificates evidencing the debt obligations to which the conversion privileges, options or rights are attached. 

(2)  Conversion privileges, options and rights to purchase debt obligations issued by an authority may be made transferable or non‑transferable, and options and rights to purchase may be made separable or inseparable from any debt obligations to which they are attached.

AR 149/90 s39

Repayment, acquisition and reissue of debt obligations

40(1)  Debt obligations issued, pledged, hypothecated or deposited by an authority are not redeemed by reason only that the indebtedness evidenced by the debt obligations or in respect of which the debt obligations are issued, pledged, hypothecated or deposited is repaid, and those obligations remain obligations of the authority until they are discharged. 

(2)  Debt obligations issued by an authority and purchased, redeemed or otherwise acquired by it may be cancelled or, subject to any applicable trust indenture or other agreement, may be reissued, pledged or hypothecated to secure any obligation of the authority then existing or thereafter incurred, and any such acquisition and reissue, pledge or hypothecation is not a cancellation of the debt obligations.

AR 149/90 s40

Part 7
Security Certificates, Registers
and Transfers

Division 1
Interpretation and General Provisions

Application and interpretation

41(1)  The transfer or transmission of a security issued by an authority shall be governed by this Part.

(2)  In this Part,

                               (a)    “adverse claim” includes a claim that a transfer was or would be wrongful or that a particular adverse person is the owner of or has an interest in the security;

                              (b)    “bearer” means the person in possession of a security payable to bearer or endorsed in blank;

                               (c)    “bona fide purchaser” means a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer or order form or of a security in registered form

                                        (i)    issued to him, or

                                      (ii)    endorsed to him or endorsed in blank by an appropriate person as defined in section 58;

                              (d)    “broker” means a person who is engaged for all or part of his time in the business of buying and selling securities and who, in the transaction concerned, acts for, buys a security from, or sells a security to, a customer;

                               (e)    “delivery” means voluntary transfer of possession;

                               (f)    “fiduciary” means

                                        (i)    a trustee, guardian, committee, curator or tutor,

                                      (ii)    an executor, administrator or representative of a deceased person, or

                                     (iii)    any other person acting in a fiduciary capacity;

                               (g)    “fungible” means, in relation to securities, securities of which any unit is, by nature or usage of trade, the equivalent of any other similar unit;

                              (h)    “genuine” means free of forgery or counterfeit;

                               (i)    “good faith” means honesty in fact in the conduct of the transaction in question;

                               (j)    “holder” means a person in possession of a security issued or endorsed to him or to bearer or in blank;

                              (k)    “overissue” means the issue of securities in excess of any maximum number of securities that the authority is authorized by its articles or a trust indenture to issue;

                               (l)    “purchaser” means a person who takes by sale, mortgage, hypothec, pledge, issue, reissue, gift or any other voluntary transaction creating an interest in a security;

                             (m)    “security” or “security certificate” means an instrument lawfully issued by an authority that is

                                        (i)    in bearer, order or registered form,

                                      (ii)    of a type commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment,

                                     (iii)    one of a class or series or by its terms divisible into a class or series of instruments, and

                                     (iv)    evidence of any participation or other interest in or any obligation of the authority;

                              (n)    “transfer” includes transmission by operation of law;

                              (o)    “trust indenture” means a trust indenture within the meaning of section 75 and “trust indenture trustee” means a trustee within that meaning;

                              (p)    “unauthorized”, in relation to a signature or an endorsement, means one made without actual, implied or apparent authority, and includes a forgery;

                              (q)    “valid” means issued in accordance with the applicable law and the articles of the authority or validated under section 45.

(3)  A security is a negotiable instrument except when it is stated conspicuously on the security certificate that it is non‑negotiable.

(4)  A security is in registered form if

                               (a)    it specifies a person entitled to the security or to the rights it evidences, and

                              (b)    either its transfer is capable of being recorded in a securities register or the security so states.

(5)  A debt obligation is in order form if by its terms it is payable to the order or assigns of any person specified in it with reasonable certainty or to him or his order.

(6)  A security is in bearer form if it is payable to bearer according to its terms and not by reason of any endorsement.

(7)  A guarantor for an authority is deemed to have the rights, duties and liabilities of an authority under this Part to the extent of his guarantee whether or not his obligation is noted on the security.

AR 149/90 s41

Security certificates

42(1)  A security holder is entitled at his option to a security certificate that complies with this Regulation or a non‑transferable written acknowledgment of his right to obtain a security certificate from an authority in respect of the securities issued by that authority and held by him.

(2)  An authority may charge a fee in an amount not exceeding $5 for a security certificate issued in respect of a transfer.

(3)  An authority is not required to issue more than one security certificate in respect of securities held jointly by several persons, and delivery of a certificate to one of several joint holders is sufficient delivery to all.

(4)  A security certificate must be signed by at least one director or officer of the authority or by or on behalf of a registrar or transfer agent of the authority or by a trustee who certifies it in accordance with a trust indenture.

(5)  Signatures required on a security certificate may be printed or otherwise mechanically reproduced on it.

(6)  If a security certificate contains a printed or mechanically reproduced signature of a person, the authority may issue the security certificate notwithstanding that the person has ceased to be a director or an officer of the authority, and the security certificate is as valid as if he were a director or an officer at the date of its issue.

AR 149/90 s42

Securities records

43(1)  An authority shall maintain a securities register in which it records the securities issued by it in registered form, showing, with respect to each class or series of securities,

                               (a)    the names, alphabetically arranged, and the latest known addresses of every person who is or has been a security holder,

                              (b)    the number of securities held by each security holder, and

                               (c)    the date and particulars of the issue and transfer of each security.

(2)  Neither an authority, nor its agent nor a trust indenture trustee is required to produce

                               (a)    a cancelled security certificate in registered form, an instrument referred to in section 39(1) in registered form that is cancelled or a similar cancelled instrument in registered form 6 years or more after the date of its cancellation,

                              (b)    a cancelled security certificate in bearer form, an instrument referred to in section 39(1) in bearer form that is cancelled or a similar cancelled instrument in bearer form after the date of its cancellation, or

                               (c)    an instrument referred to in section 39(1) or a similar instrument, irrespective of its form, after the date of its expiry.

AR 149/90 s43

Dealings with registered holders and transmission on death

44(1)  An authority or a trust indenture trustee may treat the registered owner of a security as the person exclusively entitled to vote, to receive notices, to receive any interest or other payments in respect of the security and otherwise to exercise all the rights and powers of an owner of the security.

(2)  Notwithstanding subsection (1), if an authority’s articles restrict the right to transfer its securities, the authority shall, and if they do not, it may, treat a person as a registered security holder entitled to exercise all the rights of the security holder he represents if that person furnishes evidence as described in section 70(2)(b) to the authority that he is

                               (a)    the executor, administrator, heir or legal representative of the heirs of the estate of a deceased security holder,

                              (b)    a guardian, committee, trustee, curator or tutor representing a registered security holder who is an infant, an incompetent person or a missing person, or

                               (c)    a liquidator of, or a trustee in bankruptcy for, a registered security holder.

(3)  If a person on whom the ownership of a security devolves by operation of law, other than a person described in subsection (2), furnishes proof of his authority to exercise rights or privileges in respect of a security issued by the authority that is not registered in his name, the authority shall treat that person as entitled to exercise those rights or privileges.

(4)  An authority is not required to inquire into the existence of, or see to the performance of, any duty owed to a third person by a registered holder of any securities issued by it or by anyone whom it treats, as permitted or required by this section, as the owner or registered holder of the securities.

(5)  If a minor exercises any rights of ownership in the securities issued by an authority, no subsequent repudiation or avoidance is effective against the authority.

(6)  An authority shall treat as owner of a security the survivors of persons to whom the security was issued if

                               (a)    it receives proof satisfactory to it of the death of any joint holder of the security, and

                              (b)    the security provides that the persons to whom the security was issued are joint holders with right of survivorship.

(7)  Subject to any applicable law relating to the collection of taxes, a person referred to in subsection (2)(a) is entitled to become a registered holder or to designate a registered holder if he deposits with the authority or its transfer agent

                               (a)    the original grant of probate or of letters of administration or a copy of such a grant certified to be a true copy by

                                        (i)    the court that granted the probate or letters of administration,

                                      (ii)    a trust company incorporated under the laws of Canada or a province, or

                                     (iii)    a lawyer or notary acting on behalf of the person referred to in subsection (2)(a),

                                       or in the case of transmission by notarial will in the Province of Quebec, a copy of the will authenticated pursuant to the laws of that Province,

                              (b)    an affidavit, statutory declaration or declaration of transmission made by a person referred to in subsection (2)(a), stating the particulars of the transmission,

                               (c)    the security certificate that was owned by the deceased holder

                                        (i)    in the case of a transfer to a person referred to in subsection (2)(a), with or without the endorsement of that person, and

                                      (ii)    in the case of a transfer to any other person, endorsed in accordance with section 58,

                                  and

                              (d)    any assurance that the authority requires under section 70.

(8)  Notwithstanding subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration in respect of the transmission, a legal representative of the deceased holder is entitled, subject to any applicable law relating to the collection of taxes, to become a registered holder or to designate a registered holder, if he deposits with the authority or its transfer agent

                               (a)    the security certificate that was owned by the deceased holder, and

                              (b)    reasonable proof of the governing laws, of the deceased holder’s interest in the security and of the right of the legal representative or the person he designates to become the registered holder.

(9)  Deposit of the documents required by subsection (7) or (8) empowers an authority or its transfer agent to record in a securities register the transmission of a security from the deceased holder to a person referred to in subsection (2)(a) or to any person whom the person referred to in subsection (2)(a) designates and, thereafter, to treat the person who thus becomes a registered holder as the owner of the security.

AR 149/90 s44

Overissue

45(1)  The provisions of this Part that validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overissue, but if a valid security, similar in all respects to the security involved in the overissue,

                               (a)    is reasonably available for purchase, the person entitled to the validation or issue may compel the authority to purchase and deliver such a security to him against surrender of the security that he holds, or

                              (b)    is not reasonably available for purchase, the person entitled to the validation or issue may recover from the authority an amount equal to the price the last purchaser for value paid for the invalid security.

(2)  Where an authority subsequently amends its articles, or a trust indenture to which it is a party, to increase its authorized securities to a number equal to or in excess of the number of securities previously authorized plus the amount of the securities overissued, the securities so overissued are valid from the date of their issue.

(3)  Subsection (2) does not apply if the authority has purchased and delivered a security in accordance with subsection (1)(a) or paid the amount referred to in subsection (1)(b).

AR 149/90 s45

Burden of proof in actions

46   In an action on a security,

                               (a)    unless specifically denied in the pleadings, each signature on the security or in a necessary endorsement is admitted,

                              (b)    a signature on the security is presumed to be genuine and authorized but, if the effectiveness of the signature is put in issue, the burden of establishing that it is genuine and authorized is on the party claiming under the signature,

                               (c)    if a signature is admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defence or a defect going to the validity of the security, and

                              (d)    if the defendant establishes that a defence or defect exists, the plaintiff has the burden of establishing that the defence or defect is ineffective against him or some person under whom he claims.

AR 149/90 s46

Fungible nature of securities

47   Unless otherwise agreed and subject to any applicable law or stock exchange rule, a person required to deliver securities may deliver any security of the specified issue in bearer form or registered in the name of the transferee or endorsed to him or in blank.

AR 149/90 s47

Division 2
Issue

Notice of defects

48(1)  Even against a purchaser for value and without notice of a defect going to the validity of a security, the terms of the security include those stated on the security and those incorporated in it by reference to another instrument, statute, rule, regulation or order to the extent that the terms so referenced do not conflict with the stated terms, but such a reference is not of itself notice to a purchaser for value of a defect going to the validity of the security, notwithstanding that the security expressly states that a person accepting it admits such notice. 

(2)  A security is valid in the hands of a purchaser for value without notice of any defect going to its validity.

(3)  Except as provided in section 50, the fact that a security is not genuine is a complete defence even against a purchaser for value and without notice.

(4)  All other defences that an authority would have but for this subsection, including non‑delivery and conditional delivery of a security, are ineffective against a purchaser for value without notice of the particular defence.

AR 149/90 s48

Staleness as notice of defect

49   After an event that creates a right to immediate performance of the principal obligation evidenced by a security or that sets a date on or after which a security is to be presented or surrendered for redemption or exchange, a purchaser is deemed to have notice of any defect in its issue or of any defence that the authority has,

                               (a)    if the event requires the payment of money or the delivery of securities, or both, on presentation or surrender of the security, and that money or those securities are available on the date set for payment or exchange, and the purchaser takes the security more than 1 year after that date, or

                              (b)    if the purchaser takes the security more than 2 years after the date set for surrender or presentation or the date on which that performance became due.

AR 149/90 s49

Unauthorized signature

50   An unauthorized signature on a security before or in the course of issue is ineffective, except that the signature is effective in favour of a purchaser for value and without notice of the lack of authority if the signing has been done by

                               (a)    an authenticating trustee, registrar, transfer agent or other person entrusted by the authority with the signing of the security or of similar securities or with their immediate preparation for signing, or

                              (b)    an employee of the authority or of a person referred to in clause (a) who in the ordinary course of his duties handles the security.

AR 149/90 s50

Completion or alteration

51(1)  If a security contains the signatures necessary to its issue or transfer but is incomplete in any other respect,

                               (a)    any person may complete it by filling in the blanks in accordance with his authority, and

                              (b)    notwithstanding that the blanks are incorrectly filled in, the security as completed is enforceable by a purchaser who took it for value and without notice of the incorrectness.

(2)  A completed security that has been improperly altered, even if fraudulently altered, remains enforceable, but only according to its original terms.

AR 149/90 s51

Warranties of agents

52(1)  A person signing a security as authenticating trustee, registrar, transfer agent or other person entrusted by the authority with the signing of the security warrants to a purchaser for value without notice that

                               (a)    the security is genuine,

                              (b)    his acts in connection with the issue of the security are within his authority, and

                               (c)    he has reasonable grounds for believing that the security is in the form and within the amount that the authority is authorized to issue.

(2)  Unless otherwise agreed, a person referred to in subsection (1) does not assume any further liability for the validity of a security.

AR 149/90 s52

Division 3
Purchase

Title of purchaser

53(1)  On delivery of a security, the purchaser acquires the rights in the security that his transferor had or had authority to convey, except that a purchaser who has been a party to any fraud or illegality affecting the security or who as a prior holder had notice of an adverse claim does not improve his position by taking from a later bona fide purchaser. 

(2)  A bona fide purchaser, in addition to acquiring the rights of a purchaser, also acquires the security free from any adverse claim.

(3)  A purchaser of a limited interest acquires rights only to the extent of the interest purchased.

(4)  Nothing in subsection (2) confers any rights on a purchaser unless all necessary endorsements are made by an appropriate person as defined in section 58.

AR 149/90 s53

Deemed notice of adverse claims

54(1)  A purchaser of a security or a broker for a seller or purchaser is deemed to have notice of all adverse claims if

                               (a)    the security, whether in bearer or registered form, has been endorsed “for collection” or “for surrender” or for some other purpose not involving transfer, or

                              (b)    the security is in bearer form and has on it a statement that it is the property of a person other than the transferor. 

(2)  The mere writing of a name on a security is not a statement referred to in subsection (1)(b).

(3)  Notwithstanding that a purchaser or a broker for a seller or purchaser has notice that a security is held for a third person or is registered in the name of or endorsed by a fiduciary, he has no duty to inquire into the rightfulness of the transfer and has no notice of an adverse claim, except that if a purchaser knows that the consideration is to be used for or that the transaction is for the personal benefit of the fiduciary or is otherwise in breach of the fiduciary’s duty, the purchaser is deemed to have notice of an adverse claim.

AR 149/90 s54

Staleness as notice of adverse claims

55   An event that creates a right to immediate performance of the principal obligation evidenced by a security or that sets a date on or after which the security is to be presented or surrendered for redemption or exchange is not of itself notice of an adverse claim except in the case of a purchase

                               (a)    after one year from any date set for that presentation or surrender for redemption or exchange, or

                              (b)    after 6 months from any date set for payment of money against presentation or surrender of the security if funds are available for payment on that date.

AR 149/90 s55

Warranties

56(1)  A person who presents a security for registration of transfer or for payment or exchange warrants to the authority that he is entitled to the registration, payment or exchange, except that a purchaser for value without notice of an adverse claim who receives a new, reissued or re‑registered security on registration of transfer warrants only that he has no knowledge of any unauthorized signature in a necessary endorsement.

(2)  A person, by transferring a security to a purchaser for value, warrants only that

                               (a)    the transfer is effective and rightful,

                              (b)    the security is genuine and has not been materially altered, and

                               (c)    he knows of nothing that might impair the validity of the security.

(3)  If a security is delivered by an intermediary known by the purchaser to be entrusted with delivery of the security on behalf of another or with collection of a draft or other claim to be collected against the delivery, the intermediary by the delivery warrants only his own good faith and authority even if he has purchased or made advances against the draft or other claim to be collected against the delivery.

(4)  A pledgee or other holder for purposes of security who redelivers a security received, or after payment and on order of the debtor delivers that security to a third person, gives only the warranties of an intermediary under subsection (3).

(5)  A broker gives

                               (a)    to his customer and to a purchaser the warranties provided in subsection (2), and

                              (b)    to the authority the warranties provided in subsection (1).

(6)  A broker has the rights and privileges of a purchaser under this section.

(7)  The warranties of and in favour of a broker acting as an agent are in addition to warranties given by his customer and warranties given in favour of his customer.

AR 149/90 s56

Right to compel endorsement

57   If a security in registered form is delivered to a purchaser without a necessary endorsement, he may become a bona fide purchaser only as of the time the endorsement is supplied, but against the transferor the transfer is complete on delivery and the purchaser has a specifically enforceable right to have any necessary endorsement supplied.

AR 149/90 s57

Endorsement

58(1)  In this section, “appropriate person” means

                               (a)    the person specified by the security or by special endorsement to be entitled to the security,

                              (b)    if a person described in clause (a) is described as a fiduciary but is no longer serving in the described capacity, either that person or his successor,

                               (c)    if the security or endorsement mentioned in clause (a) specifies more than one person as fiduciaries and one or more are no longer serving in the described capacity, the remaining fiduciaries, whether or not a successor has been appointed or qualified,

                              (d)    if a person described in clause (a) is an individual and is without capacity to act by reason of death, incompetence, minority or otherwise, his fiduciary,

                               (e)    if the security or endorsement mentioned in clause (a) specifies more than one person with right of survivorship and by reason of death all cannot sign, the survivors,

                               (f)    a person having power to sign under applicable law or a power of attorney, or

                               (g)    to the extent that a person described in clauses (a) to (f) may act through an agent, his authorized agent.

(2)  Whether the person signing is an appropriate person is determined as of the time of signing and an endorsement by such a person does not become unauthorized for the purposes of this Part by reason of any subsequent change of circumstances.

(3)  An endorsement of a security in registered form is made when an appropriate person signs, either on the security or on a separate document, an assignment or transfer of the security or a power to assign or transfer it, or when the signature of an appropriate person is written without more on the back of the security.

(4)  An endorsement may be special or in blank.

(5)  An endorsement in blank includes an endorsement to bearer.

(6)  A special endorsement specifies the person to whom the security is to be transferred, or who has power to transfer it.

(7)  A holder may convert an endorsement in blank into a special endorsement.

(8)  Unless otherwise agreed, the endorser by his endorsement assumes no obligation that the security will be honoured by the authority.

(9)  An endorsement purporting to be only of part of a security representing units intended by the authority to be separately transferable is effective to the extent of the endorsement.

(10)  Failure of a fiduciary to comply with a controlling instrument or with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of a transfer, does not render his endorsement unauthorized for the purposes of this Part.

AR 149/90 s58

Effect of endorsement without delivery

59   An endorsement of a security, whether special or in blank, does not constitute a transfer until delivery of the security on which it appears or, if the endorsement is on a separate document, until delivery of both the security and that document.

AR 149/90 s59

Endorsement in bearer form

60   An endorsement of a security in bearer form may give notice of an adverse claim under section 54 but does not otherwise affect any right to registration that the holder has.

AR 149/90 s60

Effect of unauthorized endorsement

61   Unless the owner has ratified an unauthorized endorsement or is otherwise precluded from asserting its ineffectiveness, he may assert its ineffectiveness against the authority or any purchaser, other than a purchaser for value without notice of adverse claims, who has in good faith received a new, reissued or re‑registered security on registration of transfer.

AR 149/90 s61

Warranties of guarantees of signatures or endorsements

62(1)  A person who guarantees a signature of an endorser of a security warrants that at the time of signing

                               (a)    the signature was genuine,

                              (b)    the signer was an appropriate person, as defined in section 58, to endorse, and

                               (c)    the signer had legal capacity to sign.

(2)  A person who guarantees a signature of an endorser does not otherwise warrant the rightfulness of the particular transfer.

(3)  A person who guarantees an endorsement of a security warrants both the signature and the rightfulness of the transfer in all respects, but an authority may not require a guarantee of endorsement as a condition to registration of transfer.

(4)  The warranties referred to in this section are made to any person taking or dealing with the security relying on the guarantee and the guarantor is liable to that person for any loss resulting from breach of warranty.

AR 149/90 s62

Constructive delivery and constructive ownership

63(1)  Delivery to a purchaser occurs when

                               (a)    the purchaser or a person designated by him acquires possession of a security,

                              (b)    his broker acquires possession of a security specially endorsed to or issued in the name of the purchaser,

                               (c)    his broker sends him confirmation of the purchase and the broker in his records identifies a specific security as belonging to the purchaser, or

                              (d)    with respect to an identified security to be delivered while still in the possession of a third person, that person acknowledges that he holds it for the purchaser.

(2)  A purchaser is the owner of a security held for him by his broker, but a purchaser is not a holder except in the circumstances described in subsection (1)(b) and (c).

(3)  If a security is part of a fungible bulk, a purchaser of the security is the owner of a proportionate interest in the fungible bulk.

(4)  Notice of an adverse claim received by a broker or by a purchaser after the broker takes delivery as a holder for value is not effective against the broker or the purchaser, except that, as between the broker and the purchaser, the purchaser may demand delivery of an equivalent security in relation to which no notice of an adverse claim has been received.

AR 149/90 s63

Delivery of security

64(1)  Unless otherwise agreed, if a sale of a security is made on an exchange or otherwise through brokers,

                               (a)    the selling customer fulfils his duty to deliver when

                                        (i)    he delivers the security to the selling broker or to a person designated by the selling broker, or

                                      (ii)    he causes an acknowledgment to be made to the selling broker that the security is held for him,

                                  and

                              (b)    the selling broker, including a correspondent broker, acting for a selling customer fulfils his duty to deliver

                                        (i)    by delivering the security or a similar security to the buying broker or to a person designated by the buying broker, or

                                      (ii)    by effecting clearance of the sale in accordance with the rules of the exchange on which the transaction took place.

(2)  Except as otherwise provided in this section and unless otherwise agreed, a transferor’s duty to deliver a security under a contract of purchase is not fulfilled until he

                               (a)    delivers the security in negotiable form to the purchaser or to a person designated by the purchaser, or

                              (b)    causes an acknowledgment to be made to the purchaser that the security is held for him.

(3)  A sale to a broker purchasing for his own account is subject to subsection (2) and not subsection (1), unless the sale is made on a stock exchange.

AR 149/90 s64

Right to reclaim possession of security

65(1)  A person against whom the transfer of a security is wrongful for any reason, including his incapacity but not including an unauthorized endorsement, may, against any person except a bona fide purchaser, reclaim possession of the security, obtain possession of a new security evidencing all or part of the same rights or claim damages.

(2)  If the transfer of a security is wrongful by reason of an unauthorized endorsement, the owner may reclaim possession of the security or obtain possession of a new security even from a purchaser for value without notice of an adverse claim, if the ineffectiveness of the purported endorsement may be asserted against the purchaser under section 61.

(3)  The right to reclaim possession of a security may be specifically enforced, its transfer may be restrained and the security may be impounded pending litigation.

AR 149/90 s65

Right to requisites of transfer

66(1)  Unless otherwise agreed, a transferor shall on demand supply a purchaser with proof of his authority to transfer or with any other requisite that is necessary to obtain registration of the transfer of a security, but, if the transfer is not for value, a transferor need not do so unless the purchaser pays the reasonable and necessary costs of the proof and transfer.

(2)  If the transferor fails to comply with a demand under subsection (1) within a reasonable time, the purchaser may reject or rescind the transfer.

AR 149/90 s66

Seizure of security

67   No seizure of a security or other interest evidenced by a security is effective until the person making the seizure obtains possession of the security.

AR 149/90 s67

Liability of agent or bailee selling, etc. securities

68(1)  An agent or bailee who in good faith has received securities and sold, pledged or delivered them according to the instructions of his principal is not liable for conversion or for participation in breach of fiduciary duty although the principal has no right to dispose of them.

(2)  For the purposes of subsection (1), “good faith” includes observance of reasonable commercial standards if the agent or bailee is in the business of buying, selling or otherwise dealing with securities.

AR 149/90 s68

Duty to register transfer

69(1)  If a security in registered form is presented for registration of transfer, the authority shall register the transfer if

                               (a)    the security is endorsed by an appropriate person as defined in section 58,

                              (b)    reasonable assurance is given that the endorsement is genuine and effective,

                               (c)    the authority has no duty to inquire into adverse claims, or has discharged any such duty,

                              (d)    any applicable law relating to the collection of taxes has been complied with,

                               (e)    the transfer is rightful or is to a bona fide purchaser, and

                               (f)    any fee charged under section 42(2) has been paid.

(2)  If an authority has a duty to register a transfer of a security, the authority is liable to the person presenting it for registration for loss resulting from any unreasonable delay in registration or from failure or refusal to register the transfer.

AR 149/90 s69

Assurance that endorsement is effective

70(1)  An authority may require an assurance that each necessary endorsement on a security is genuine and effective by requiring a guarantee of the signature of the person endorsing and by requiring

                               (a)    if the endorsement is by an agent, reasonable assurance of the agent’s authority to sign,

                              (b)    if the endorsement is by a fiduciary, evidence of the fiduciary’s appointment or incumbency,

                               (c)    if there is more than one fiduciary, reasonable assurance that all who are required to sign have done so, and

                              (d)    in any other case, assurance that corresponds as closely as practicable to the assurance or evidence referred to in clauses (a) to (c). 

(2)  In subsection (1),

                               (a)    “evidence of the fiduciary’s appointment or incumbency” means,

                                        (i)    in the case of a fiduciary appointed by a court, a copy of the order certified as referred to in section 44(7) and dated not earlier than 60 days before the date the security is presented for transfer, or

                                      (ii)    in any other case, a copy of a document showing the appointment or other evidence believed by the authority to be appropriate;

                              (b)    “guarantee of the signature” means a guarantee signed by or on behalf of a person reasonably believed by the authority to be a responsible person.

(3)  An authority may adopt reasonable standards

                               (a)    to determine responsible persons for the purposes of subsection (2)(a), and

                              (b)    with respect to evidence for the purposes of subsection (2)(b)(ii).

(4)  An authority is not regarded as having notice of the contents of a document referred to in subsection (2)(b) except to the extent that the contents relate directly to appointment or incumbency.

(5)  If an authority demands assurance additional to that specified in this section for a purpose other than that specified in subsection (2)(b) and obtains a copy of a will, trust or partnership agreement, by‑law or similar document, the authority is regarded as having notice of all matters contained in it affecting the transfer.

AR 149/90 s70

Limited duty of inquiry as to adverse claims

71(1)  An authority to whom a security is presented for registration of transfer has a duty to inquire into adverse claims if

                               (a)    written notice of an adverse claim is received at a time and in a manner that affords the authority a reasonable opportunity to act on it before the issue of a new, reissued or re‑registered security and the notice discloses the name and address of the claimant, the registered owner and the issue of which the security is a part, or

                              (b)    the authority is regarded as having notice of an adverse claim from a document that is obtained under section 70(5).

(2)  An authority may discharge a duty of inquiry by any reasonable means, including notifying an adverse claimant by registered mail sent to the address furnished by him or, if no such address has been furnished, to his residence or regular place of business, that a security has been presented for registration of transfer by a named person and that the transfer will be registered unless, within 30 days from the date of mailing the notice, the authority is

                               (a)    served with a restraining order or other order of the Court, or

                              (b)    provided with an indemnity bond sufficient in the authority’s judgment to protect the authority and any registrar, transfer agent or other agent of the authority from any loss that may be incurred by any of them as a result of complying with the adverse claim.

(3)  Unless an authority is regarded as having notice of an adverse claim from a document that it obtained under section 70(5) or has received notice of an adverse claim under subsection (1), if a security presented for registration is endorsed by an appropriate person as defined in section 58, the authority has no duty to inquire into adverse claims, and, in particular,

                               (a)    an authority registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent or correct description of the fiduciary relationship, and thereafter the authority may assume without inquiry that the fiduciary is no longer acting as such with respect to the particular security,

                              (b)    an authority registering a transfer on an endorsement by a fiduciary has no duty to inquire whether the transfer is made in compliance with the document or with the law of the jurisdiction governing the fiduciary relationship, and

                               (c)    an authority is not regarded as having notice of the contents of any court record or any registered document even if the record or document is in the authority’s possession and even if the transfer is made on the endorsement of a fiduciary to the fiduciary himself or to his nominee.

(4)  A written notice of adverse claim received by an authority is effective for 12 months from the date when it was received and thereon ceases to be effective unless the notice is renewed in writing.

(5)  An authority who registers the transfer of a security on an unauthorized endorsement is liable for improper registration.

AR 149/90 s71

Limitation of authoritys liability

72(1)  Except as otherwise provided in any applicable law relating to the collection of taxes, the authority is not liable to the owner or any other person who incurs a loss as a result of the registration of a transfer of a security if

                               (a)    the necessary endorsements were on or with the security, and

                              (b)    the authority had no duty to inquire into adverse claims or had discharged any such duty.

(2)  If an authority has registered a transfer of a security to a person not entitled to it, the authority shall on demand deliver a similar security to the owner unless

                               (a)    subsection (1) applies,

                              (b)    the owner is precluded by section 73(1) from asserting any claim, or

                               (c)    the delivery would result in overissue.

(3)  If delivery under subsection (2) would result in overissue, the authority’s liability is governed by section 45.

AR 149/90 s72

Rights and obligations on loss or theft

73(1)  If

                               (a)    a security has been lost, apparently destroyed or wrongfully taken and the owner fails to notify the authority of that fact by giving the authority written notice of his adverse claim within a reasonable time after he knows of the loss, destruction or taking, and

                              (b)    the authority has registered a transfer of the security before receiving such notice,

the owner is precluded from asserting against the authority any claim to a new security.

(2)  If the owner of a security claims that the security has been lost, destroyed or wrongfully taken, the authority shall issue a new security in place of the original security if the owner

                               (a)    so requests before the authority has notice that the security has been acquired by a bona fide purchaser and before a purchaser described in section 61 has received a new, reissued or re‑registered security,

                              (b)    furnishes the authority with a sufficient indemnity bond, and

                               (c)    satisfies any other reasonable requirements imposed by the authority. 

(3)  If, after the issue of a new security under subsection (2), a bona fide purchaser of the original security presents the original security for registration of transfer, the authority shall register the transfer unless registration would result in overissue, in which case the authority’s liability is governed by section 45.

(4)  In addition to any rights on an indemnity bond, the authority may recover a new security issued under subsection (2) from the person to whom it was issued or any person taking under him other than a bona fide purchaser.

AR 149/90 s73

Rights, duties, etc. of authoritys agent

74(1)  An authenticating trustee, registrar, transfer agent or other agent of an authority has, in respect of the issue, registration of transfer and cancellation of a security of the authority,

                               (a)    a duty to the authority to exercise good faith and reasonable diligence, and

                              (b)    the same obligations to the holder or owner of a security and the same rights, privileges and immunities as the authority. 

(2)  Notice to an authenticating trustee, registrar, transfer agent or other agent of an authority is notice to the authority with respect to the functions performed by the agent.

AR 149/90 s74

Part 8
Corporate Borrowing -
Trust Indentures

Interpretation and application

75(1)  In this Part,

                               (a)    “authority” means an authority that has issued or that is to issue, as the case may be, debt obligations under a trust indenture;

                              (b)    “event of default” means an event specified in a trust indenture on the occurrence of which

                                        (i)    a security interest constituted by the trust indenture becomes enforceable, or

                                      (ii)    the principal, interest and other money payable under the trust indenture becomes or may be declared to be payable before maturity,

                                       but the event is not an event of default until all conditions prescribed by the trust indenture in connection with that event for the giving of notice or the lapse of time or otherwise have been satisfied;

                               (c)    “guarantor” means a guarantor of debt obligations issued or to be issued under a trust indenture;

                              (d)    “trust indenture” means a deed, indenture or other instrument, including any supplement or amendment to it, made by an authority under which the authority issues debt obligations and in which a person is appointed as trustee for the holders of the debt obligations issued under it;

                               (e)    “trustee” means a person appointed as trustee under the terms of a trust indenture to which an authority is a party, and includes any successor trustee.

(2)  This Part applies to a trust indenture only if the debt obligations issued or to be issued under the trust indenture are part of a distribution to the public.

AR 149/90 s75

Distribution to the public

76(1)  For the purposes of this Part, debt obligations of an authority

                               (a)    issued on a conversion of other debt obligations, or

                              (b)    issued in exchange for other debt obligations

are deemed to be debt obligations that are part of a distribution to the public if those other debt obligations were part of a distribution to the public.

(2)  Subject to subsection (3), for the purposes of this Part, a debt obligation of an authority

                               (a)    is part of a distribution to the public if, in respect of the debt obligation, there has been a filing of a prospectus, a statement of material facts, a registration statement or a similar document under the laws of Canada, a province of Canada or a jurisdiction outside Canada, or

                              (b)    is deemed to be part of a distribution to the public if the debt obligation has been issued and a filing referred to in clause (a) would be required if the debt obligation were being issued currently. 

(3)  On the application of an authority, the Board of the Alberta Securities Commission may determine that a debt obligation of the authority is not or was not part of a distribution to the public if it is satisfied that its determination would not prejudice any holder of any of the authority’s debt obligations.

AR 149/90 s76

Conflict of interest

77(1)  A person may not be appointed as trustee if there is a material conflict of interest between his role as trustee and his role in any other capacity.

(2)  A trustee shall, within 90 days after he becomes aware that a material conflict of interest exists,

                               (a)    eliminate the conflict of interest, or

                              (b)    resign from office.

(3)  A trust indenture, any debt obligations issued under it and a security interest effected by it are valid notwithstanding a material conflict of interest of the trustee.

(4)  If a trustee is appointed in contravention of subsection (1) or if he contravenes subsection (2), an interested person may apply to the Court for an order that the trustee be replaced, and the Court may make an order on any terms it thinks fit.

AR 149/90 s77

Qualification of trustee

78   A trustee, or at least one of the trustees if more than one is appointed, must be trust corporation registered under the Loan and Trust Corporations Act.

AR 149/90 s78;194/98

List of holders

79(1)  A holder of debt obligations issued under a trust indenture may, on payment to the trustee of a reasonable fee, require the trustee to provide, within 15 days after delivering to the trustee a statutory declaration, a list setting out

                               (a)    the names and addresses of the registered holders of the outstanding debt obligations,

                              (b)    the principal amount of outstanding debt obligations owned by each of those holders, and

                               (c)    the aggregate principal amount of debt obligations outstanding as shown on the records maintained by the trustee on the day that the statutory declaration is delivered to the trustee.

(2)  On the demand of a trustee, the authority shall furnish the trustee with the information required to enable the trustee to comply with subsection (1).

(3)  If the person requiring the trustee to provide a list under subsection (1) is a corporation, the statutory declaration required by that subsection must be made by a director or officer of the corporation.

(4)  The statutory declaration required by subsection (1) must

                               (a)    state the name and address of the person requiring the trustee to provide the list and, if that person is a corporation, the address for service of the corporation, and

                              (b)    state that the list will not be used except as permitted by subsection (5).

(5)  A person shall not use a list obtained under this section except in connection with

                               (a)    an effort to influence the voting of the holders of debt obligations,

                              (b)    an offer to acquire debt obligations, or

                               (c)    any other matter relating to the debt obligations or the affairs of the authority or of a guarantor. 

(6)  A person who, without reasonable cause, contravenes subsection (5) is guilty of an offence and liable to a fine of not more than $5000.

AR 149/90 s79

Evidence of compliance

80(1)  An authority or a guarantor, before

                               (a)    the issue, certification and delivery of debt obligations under the trust indenture,

                              (b)    the release or release and substitution of property subject to a security interest constituted by the trust indenture, or

                               (c)    the satisfaction and discharge of the trust indenture,

shall provide the trustee with evidence of compliance with the conditions in the trust indenture relating to that act.

(2)  On the demand of a trustee, the authority or guarantor shall furnish the trustee with evidence of compliance with the trust indenture by the authority or guarantor in respect of any act to be done by the trustee at the request of the authority or guarantor.

AR 149/90 s80

Contents of declaration

81   Evidence of compliance required by section 80 must consist of

                               (a)    a statutory declaration or certificate made by a director or an officer of the authority or guarantor stating that the conditions referred to in that section have been complied with,

                              (b)    if the trust indenture requires compliance with conditions that are subject to review by legal counsel, an opinion of legal counsel that those conditions have been complied with, and

                               (c)    if the trust indenture requires compliance with conditions that are subject to review by an auditor or accountant, an opinion or report of the auditor of the authority or guarantor, or any other accountant the trustee may select, that those conditions have been complied with.

AR 149/90 s81

Further evidence of compliance

82   The evidence of compliance referred to in section 81 must include a statement by the person giving the evidence

                               (a)    declaring that he has read and understands the conditions of the trust indenture described in section 80,

                              (b)    describing the nature and scope of the examination or investigation on which he based the certificate, statement or opinion, and

                               (c)    declaring that he has made any examination or investigation that he believes is necessary to enable him to make the statements or give the opinions contained or expressed in it.

AR 149/90 s82

Requirement of evidence of compliance

83(1)  On the demand of a trustee, the authority or guarantor shall furnish the trustee with evidence in any form that the trustee requires as to compliance with any condition of the trust indenture relating to any action required or permitted to be taken by the authority or guarantor under the trust indenture.

(2)  At least once in each 12‑month period beginning on the date of the trust indenture and at any other time on the demand of a trustee, the authority or guarantor shall furnish the trustee with a certificate that the authority or guarantor has complied with all requirements contained in the trust indenture which, if not complied with, would, with the giving of notice, lapse of time or otherwise, constitute an event of default, or, if there has been failure so to comply, giving particulars of the failure.

AR 149/90 s83

Notice of default

84   The trustee shall, within 30 days after the trustee becomes aware of its occurrence, give to the holders of debt obligations issued under a trust indenture, notice of every event of default arising under the trust indenture and continuing at the time the notice is given, unless the trustee reasonably believes that it is in the best interests of the holders of the debt obligations to withhold the notice and so informs the authority or guarantor in writing.

AR 149/90 s84

Trustees duty of care

85   A trustee, in exercising his powers and discharging his duties, shall

                               (a)    act honestly and in good faith with a view to the best interests of the holders of the debt obligations issued under the trust indenture, and

                              (b)    exercise the care, diligence and skill of a reasonably prudent trustee.

AR 149/90 s85

Trustees reliance on statements

86   Notwithstanding section 85, a trustee is not liable if he relies in good faith on statements contained in a statutory declaration, certificate, opinion or report that complies with this Regulation or the trust indenture.

AR 149/90 s86

Inability to obtain relief from duties

87   No term of a trust indenture or of an agreement between

                               (a)    a trustee and the holders of debt obligations issued under the trust indenture, or

                              (b)    the trustee and the authority or guarantor

operates so as to relieve a trustee from the duties imposed on him by section 85.

AR 149/90 s87

Part 9
Receivers and Receiver‑managers

Appointment of receiver or receiver-manager

88(1)  A person may act as a receiver or receiver‑manager of an authority only if he is appointed by the Court or his appointment is confirmed by the Court.

(2)  An instrument that provides for the appointment of a receiver or receiver‑manager of an authority is deemed to make the appointment subject to the Court’s confirmation.

AR 149/90 s88

Confirmation of appointment

89   A person who has lawfully appointed a receiver or receiver‑manager of an authority or such an appointee may apply to the Court for confirmation of the appointment.

AR 149/90 s89

Functions of receiver

90   A receiver of an authority may, subject to the rights of secured creditors, receive the income from the property, pay the liabilities connected with the property and realize the security interests of those on whose behalf he is appointed, but, except to the extent permitted by the Court, he may not carry on any part of the authority’s undertaking.

AR 149/90 s90

Functions of receiver-manager

91   A receiver‑manager of an authority may, subject to the Act and this Regulation, carry on any part of the authority’s undertaking to protect the security interests of those on whose behalf he is appointed. 

AR 149/90 s91

Directors powers during receiver-managership

92   The powers of the directors that a receiver‑manager is authorized to exercise may not be exercised by the directors until the receiver‑manager is discharged.

AR 149/90 s92

Court directions

93   A receiver or receiver‑manager of an authority shall act in accordance with the directions of the Court and, subject to those directions, with any instrument appointing him. 

AR 149/90 s93

Duty of care

94   A receiver or receiver‑manager of an authority shall

                               (a)    act honestly and in good faith,

                              (b)    have regard to the purposes of an authority, and

                               (c)    subject to the other provisions of this Part, deal with the authority’s property in his possession or control in a commercially reasonable manner.

AR 149/90 s94

Powers of the Court

95   On an application by a receiver or receiver‑manager of an authority or by an interested person, the Court may make any order it thinks fit, including, without limiting the generality of the foregoing, an order

                               (a)    appointing, replacing or discharging a receiver or receiver‑manager,

                              (b)    approving his accounts,

                               (c)    specifying the notice to be given to any person or dispensing with notice to any person,

                              (d)    fixing the remuneration of the receiver or receiver‑manager,

                               (e)    requiring the receiver or receiver‑manager, or a person by whom or on whose behalf he is appointed, to make good any default in connection with the receiver’s or receiver‑manager’s custody or management of the property and, where applicable, the undertaking of the authority,

                               (f)    relieving a person referred to in clause (e) from any default on any terms the Court thinks fit,

                               (g)    confirming any act of the receiver or receiver‑manager,

                              (h)    directing that the receiver or receiver‑manager make available to the applicant any information from the accounts of his administration that the Court specifies, or

                               (i)    giving directions on any matter relating to the duties of the receiver or receiver‑manager.

AR 149/90 s95

Duties

96   A receiver or receiver‑manager of an authority shall

                               (a)    immediately send the Registrar a certified copy of the order appointing or discharging him or with written notice of his appointment or discharge,

                              (b)    take into his custody and control the authority’s property in accordance with the Court order appointing him or, if applicable, the instrument under which he is appointed,

                               (c)    open and maintain a bank account in his name as receiver or receiver‑manager for the money of the authority coming under his control,

                              (d)    keep detailed accounts of all transactions carried out by him as receiver or receiver‑manager,

                               (e)    keep accounts of his administration that are available during usual business hours for inspection by the directors,

                               (f)    prepare at least once in every 6‑month period after his appointment financial statements of his administration as far as is practicable in the form required by and under sections 30 and 31 of the Act and, subject to any order of the Court, send a copy of them to the Registrar within 60 days after the end of each 6‑month period, and

                               (g)    on completion of his duties,

                                        (i)    render a final account of his administration in the form adopted for interim accounts under clause (f),

                                      (ii)    send a copy of the final report to the Registrar, and

                                     (iii)    send a copy of the final report to each director.

AR 149/90 s96

Regard by Court to purposes and public interest

97   In exercising its powers and duties under this Part, the Court shall have regard to the purposes of an authority, but the Court may make an order permitting a receiver or receiver‑manager of an authority to perform an act or to refrain from performing an act notwithstanding that the purpose referred to in section 21(b) of the Act is not adhered to, if the Court considers that the authority’s financial circumstances require such an order and that the making of the order would be equitable.

AR 149/90 s97

Part 10
Liquidation and Dissolution

Definition and application

98(1)  In this Part, “distributee” means a body that, pursuant to an authority’s articles or an order of the Court, may or is to benefit from a distribution of the authority’s assets on its liquidation, dissolution, winding‑up or termination.

(2)  Section 5 of the Companies Act does not apply with respect to an authority.

AR 149/90 s98

Stay of proceedings

99   Where an authority is found to be an insolvent person or a bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada), any proceedings taken under this Part to liquidate and dissolve the authority shall be stayed.

AR 149/90 s99;194/98

Voluntary liquidation and dissolution

100(1)  An authority may apply to the Court for an order to liquidate and dissolve the authority under the Court’s supervision pursuant to this Regulation if it has passed a special resolution authorizing the proposed liquidation and dissolution and authorizing the discharging of all its liabilities and the subsequent distribution of all its property remaining after all its liabilities have been discharged. 

(2)  The application to the Court under subsection (1) may not be made until at least 30 days have elapsed since the giving of notice of the special resolution to the appointers pursuant to section 16(2) or (3) of the Act.

(3)  The Court may dispense with the minimum 30‑day requirement imposed by subsection (2) if it is satisfied that all the appointers and all interested persons agree to the waiving of the requirement.

AR 149/90 s100

Compulsory liquidation and dissolution

101   The Court may, on the application of an interested person, order the liquidation and dissolution under its supervision of an authority if the Court is satisfied that

                               (a)    the authority is not carrying on its undertaking and there is no reasonable likelihood that it will resume the carrying on of its undertaking within the next 3 years,

                              (b)    the authority is being used for an unlawful purpose, or

                               (c)    the authority has not been fulfilling the purposes of an authority generally,

and that it is just and equitable that the authority be liquidated and dissolved.

AR 149/90 s101

Show cause order

102(1)  An application to the Court under this Part must state the reasons, verified by an affidavit of the applicant, why the authority should be liquidated and dissolved. 

(2)  On an application, the Court may make an order requiring the authority and any person having an interest in the authority or a claim against it to show cause, at a time and place specified in the order but not less than 4 weeks after the date of the order, why the authority should not be liquidated and dissolved. 

(3)  On an application, the Court may order the authority’s directors and officers to provide to the Court

                               (a)    the authority’s articles and financial statements,

                              (b)    the name and address of each member of the authority,

                               (c)    the name and address of each creditor, claimant and person with whom the authority has a contract, and

                              (d)    all other material information known to or reasonably ascertainable by the directors and officers. 

(4)  A copy of an order made under subsection (2) shall be

                               (a)    published as directed in the order at least once in each week before the time appointed for the hearing in a newspaper published or distributed in the place where the authority has its registered office, and

                              (b)    served on the Registrar and each person named in the order.

AR 149/90 s102

Powers of the Court

103   The Court may make any order it thinks fit in connection with the liquidation and dissolution of an authority, including, without limiting the generality of the foregoing, an order

                               (a)    placing the authority in liquidation,

                              (b)    appointing a liquidator, with or without security, fixing his remuneration or replacing him,

                               (c)    appointing inspectors or referees, specifying their powers, fixing their remuneration or replacing them,

                              (d)    specifying the notice to be given to any interested person or dispensing with notice to any person,

                               (e)    determining the validity of claims made against the authority,

                               (f)    restraining the directors and officers at any stage of the proceedings from

                                        (i)    exercising any of their powers, or

                                      (ii)    collecting or receiving any debt or other property of the authority or from paying out or transferring any property of the authority,

                                       except as permitted by the Court,

                               (g)    determining and enforcing duties or liabilities of any director, officer or member

                                        (i)    to the authority, or

                                      (ii)    for an obligation of the authority,

                              (h)    approving the payment, satisfaction or compromise of claims against the authority and the retention of assets for that purpose, and determining the adequacy of provisions for the payment or discharge of obligations of the authority, whether liquidated, unliquidated, future or contingent,

                               (i)    disposing of or destroying the documents and records of the authority,

                               (j)    giving directions on any matter arising in the liquidation,

                              (k)    relieving a liquidator from any omission or default on any terms the Court thinks fit or confirming any act of the liquidator,

                               (l)    approving any proposed interim or final distribution to distributees,

                             (m)    disposing of any property belonging to creditors who cannot be found,

                              (n)    staying the liquidation on any terms and conditions the Court thinks fit,

                              (o)    continuing or discontinuing the liquidation proceedings,

                              (p)    directing the liquidator to restore to the authority all its remaining property, or

                              (q)    dissolving the authority after the liquidator has rendered his final account to the Court.

AR 149/90 s103

Effect of liquidation order

104(1)  If the Court makes an order for the liquidation of an authority,

                               (a)    the liquidation commences when the order is made,

                              (b)    the authority continues in existence, but shall cease to carry on its undertaking except such of it as is, in the opinion of the liquidator, required for an orderly liquidation, and

                               (c)    the powers of the directors cease and vest in the liquidator, except as specifically authorized by the Court.

(2)  The liquidator may delegate any of the powers vested in him by subsection (1)(c) to the directors.

AR 149/90 s104

Appointment of liquidator

105(1)  When making an order for the liquidation of an authority or at any later time, the Court may appoint any person, including a director or an officer of the authority, as liquidator of the authority. 

(2)  If an order for the liquidation of an authority has been made and the office of liquidator is or becomes vacant, the property of the authority is under the control of the Court until the office of liquidator is filled.

AR 149/90 s105

Duties of liquidator

106   A liquidator shall

                               (a)    forthwith after his appointment give notice of his appointment to the Registrar and to each claimant and creditor known to the liquidator,

                              (b)    forthwith publish notice in The Alberta Gazette and once a week for 2 consecutive weeks in newspapers published or distributed in the place where the authority has its registered office and in the places where the appointers that are bodies corporate have their principal offices and take reasonable steps to give notice in each province in Canada where the authority carries on its undertaking, stating the fact of his appointment and requiring any person

                                        (i)    indebted to the authority, to send a statement of account respecting the indebtedness and to pay to the liquidator at the time and place specified any amount owing,

                                      (ii)    possessing property of the authority, to deliver it to the liquidator at the time and place specified, and

                                     (iii)    having a claim against the authority, whether liquidated, unliquidated, future or contingent, to present particulars of the claim in writing to the liquidator not later than 2 months after the first publication of the notice,

                               (c)    take into his custody and control the authority’s property,

                              (d)    open and maintain a trust account for the authority’s money,

                               (e)    keep accounts of the authority’s money received and paid out by him,

                               (f)    maintain separate lists of the creditors and other persons having claims against the authority,

                               (g)    if at any time the liquidator determines that the authority is unable to pay or adequately provide for the discharge of its liabilities, apply to the Court for directions,

                              (h)    deliver to the Court and to the Registrar, at least once in every 12‑month period after his appointment or more often if the Court requires financial statements of the authority in the form the liquidator thinks proper or that the Court requires, and

                               (i)    after his final accounts are approved by the Court, distribute any remaining property of the authority among the distributees in accordance with directions of the Court.

AR 149/90 s106;194/98

Powers of liquidator

107(1)  A liquidator may

                               (a)    retain lawyers, accountants, engineers, appraisers and other professional advisers,

                              (b)    bring, defend or take part in any civil, criminal or administrative action or proceeding in the name and on behalf of the authority,

                               (c)    carry on the authority’s undertaking as required for an orderly liquidation,

                              (d)    sell the authority’s property publicly or privately,

                               (e)    do acts and execute documents in the name and on behalf of the authority,

                               (f)    borrow money on the security of the authority’s property,

                               (g)    settle or compromise claims by or against the authority, and

                              (h)    do all other things for the liquidation of the authority and distribution of its property in accordance with this Regulation.

(2)  A liquidator is not liable if he relies in good faith on

                               (a)    financial statements of the authority represented to him by any of its officers qualified to make such a representation or in a written report of its auditor as reflecting fairly the financial condition of the authority or the results of its operations in accordance with generally accepted accounting principles, or

                              (b)    the opinion or report of a lawyer, accountant, engineer, appraiser or other professional adviser retained by the liquidator.

(3)  If a liquidator has reason to believe that any person has in his possession or under his control or has concealed, withheld or misappropriated any of the authority’s property, he may apply to the Court for an order requiring that person to appear before the Court at the time and place designated in the order and to be questioned.

(4)  If the questioning discloses that a person has in his possession or under his control or has concealed, withheld or misappropriated any of the authority’s property, the Court may order that person to restore it or pay compensation to the liquidator.

AR 149/90 s107;164/2010

Final accounts and discharge of liquidator

108(1)  A liquidator shall pay the costs of liquidation out of the authority’s property and shall pay or make adequate provision for all claims against the authority. 

(2)  Within one year after his appointment, and after paying or making adequate provision for all claims against the authority, the liquidator shall apply to the Court

                               (a)    for approval of his final accounts and for an order permitting him to distribute in money or in kind the remaining property of the authority to the distributees named in the application, or

                              (b)    for an extension of time, setting out the reasons for the extension.

(3)  If a liquidator fails to make the application required by subsection (2), a member or creditor of the authority may apply to the Court for an order for the liquidator to show cause why a final accounting and distribution should not be made.

(4)  A liquidator shall give notice of his intention to make an application under subsection (2) to the Registrar, each inspector appointed under section 103, each member, each appointer, each creditor known to him and any person who provided a security or fidelity bond for the liquidator.

(5)  If the Court approves the final accounts rendered by a liquidator, the Court shall make an order

                               (a)    directing the Registrar to file a copy of its order dissolving the authority,

                              (b)    directing the custody or disposal of the documents and records of the authority, and

                               (c)    subject to subsection (6), discharging the liquidator.

(6)  The liquidator shall forthwith send a certified copy of the order referred to in subsection (5) to the Registrar.

(7)  The authority ceases to exist on the date shown in the order dissolving it.

AR 149/90 s108

Final distribution of assets

109(1)  The Court shall decide which distributees are to receive the assets of an authority remaining after the discharge of all its liabilities and on its dissolution under this Regulation, and shall do so having regard to

                               (a)    the intent of the Act,

                              (b)    what it considers to be fair and equitable,

                               (c)    any contracts by which the authority is bound, and

                              (d)    the authority’s articles,

in that order of priority. 

(2)  In applying subsection (1), the Court is not bound by or restricted to applying the criteria stated in the authority’s articles for distributees, and other public bodies may be considered for eligibility as distributees, but the distributee or distributees selected must be one or more public bodies or bodies then exempt from the payment of income tax.

(3)  Subsection (1) does not apply where the authority’s articles provide that on dissolution the assets of the authority that remain after payment of its liabilities are to be distributed to the Government of Canada or to a successor organization to the authority that is acceptable to the Government of Canada, and in that case the court shall order that the assets be distributed to the Government of Canada or to the successor organization.

AR 149/90 s109;194/98

Custody of records after dissolution

110   A person who has been granted custody of the documents and records of a dissolved authority remains liable to produce those documents and records for 6 years following the date of its dissolution or until the expiry of any shorter period ordered under section 108(5).

AR 149/90 s110

Continuation of actions after dissolution

111(1)  Notwithstanding the dissolution of an authority under this Regulation,

                               (a)    a civil, criminal or administrative action or proceeding commenced by or against the authority before its dissolution may be continued as if the authority had not been dissolved,

                              (b)    a civil, criminal or administrative action or proceeding may be brought against the authority within 2 years after its dissolution as if the authority had not been dissolved, and

                               (c)    any property that would have been available to satisfy any judgment or order if the authority had not been dissolved remains available for that purpose.

(2)  Service of a document on an authority after its dissolution may be effected by serving the document on a person shown in the last notice filed under section 20 of the Act.

(3)  Notwithstanding the dissolution of an authority under this Regulation, a distributee to whom any of its property has been distributed in the liquidation is liable to any person claiming under subsection (1) to the extent of the amount received by that distributee on the distribution, and an action to enforce that liability may be brought within 2 years after dissolution. 

(4)  The Court may order an action referred to in subsection (3) to be brought against the persons who were distributees as a class, subject to any conditions the Court thinks fit and, if the plaintiff establishes his claim, the Court may refer the proceedings to a referee or other officer of the Court who may

                               (a)    add each distributee as a party to the proceedings,

                              (b)    determine the amount that each distributee must contribute towards satisfaction of the claim, and

                               (c)    direct payment of the amounts so determined.

AR 149/90 s111

Unknown claimants

112(1)  On the dissolution of an authority under this Regulation, the portion of the property distributable to a creditor who cannot be found shall be converted into money and paid to the Minister, in favour of the President of Treasury Board and Minister of Finance.

(2)  A payment under subsection (1) is deemed to be in satisfaction of a debt or claim of the creditor.

(3)  If at any time a person establishes that he is entitled to any money paid to the President of Treasury Board and Minister of Finance under this Part, the President of Treasury Board and Minister of Finance shall pay an equivalent amount to him out of the General Revenue Fund.

AR 149/90 s112;27/2002;68/2008;31/2012;62/2013

Property not disposed of

113   Subject to sections 110 and 111, property of an authority that has not been disposed of at the date of its dissolution under this Regulation vests in Her Majesty in right of Alberta.

AR 149/90 s113

Part 11
Court‑approved Arrangements

Definition

114   In this Part, “arrangement” includes, but is not restricted to,

                               (a)    a transfer of all or substantially all the property of an authority to a corporation in exchange for money or other property of or debt obligations issued by the corporation,

                              (b)    an exchange of debt obligations issued by an authority and held by others for money or other property of or securities issued by the authority or by another corporation,

                               (c)    a compromise between an authority and its creditors, the holders of its debt obligations or any class of those creditors or holders, or

                              (d)    any combination of any such transfer, exchange or compromise.

AR 149/90 s114

Application to Court

115   An authority, a holder of debt obligations issued by an authority or a creditor of an authority may make an application to the Court for an order approving an arrangement in respect of that authority.

AR 149/90 s115

Last resort

116   If an arrangement can be effected under any other provision of the Act or this Regulation, an application may not be made under this Part unless it is impracticable to effect the arrangement under that other provision.

AR 149/90 s116

Meetings

117(1)  The Court, unless it dismisses the application under this Part, shall order a meeting of persons who are creditors of or holders of debt obligations issued by the authority or of options or rights to acquire such debt obligations, or any class of those persons, if the Court considers that those persons or that class of persons are affected by the proposed arrangement. 

(2)  The Court may give any directions in the order respecting

                               (a)    the calling of and the giving of notice of the meeting,

                              (b)    the conduct of the meeting,

                               (c)    subject to subsection (4), the majority required to pass a resolution at the meeting, and

                              (d)    any other matter it thinks fit. 

(3)  The notice of the meeting must contain or be accompanied by

                               (a)    a statement explaining the effect of the arrangement, and

                              (b)    if the application is made by the authority, a statement of any material interests of the directors in any capacity and the effect of the arrangement on those interests. 

(4)  Directions respecting the majority referred to in subsection (2)(c) may not provide for any majority that is less than,

                               (a)    in the case of a vote of creditors or a class of creditors, a majority in number representing at least 2/3 of the amount of their claims,

                              (b)    in the case of a vote of the holders of debt obligations or a class of those holders, a majority in number representing at least 2/3 of the amount of their claims, and

                               (c)    in the case of a vote of holders of options or rights to acquire debt obligations, the majority that would be required under clause (b) if those holders had acquired ownership of the debt obligations. 

(5)  Notwithstanding anything in this section, if a resolution required to be voted on under the order is in writing and signed by all the persons entitled to vote on the resolution,

                               (a)    the meeting required to be held by the order need not be held, and

                              (b)    the resolution is as valid as if it had been passed at a meeting.

AR 149/90 s117

Hearing and decision

118   After the holding of the meetings required by an order under section 117 or the submission to it of written resolutions that comply with section 117(5), the Court shall hear the application and may

                               (a)    approve the arrangement as proposed by the applicant or as amended by the Court, or

                              (b)    refuse to approve the arrangement,

and may make any further order it thinks fit.

AR 149/90 s118

Filing of order

119   After an order referred to in section 118(a) has been made, the authority shall send to the Registrar a copy of the order.

AR 149/90 s119

Date of effectiveness

120   An arrangement becomes effective on the date the order is filed by the Registrar.

AR 149/90 s120

Effect

121   An arrangement, as approved by the Court, is binding on the authority and all other persons.

AR 149/90 s121

Part 12
Investigation

Court order for investigation

122(1)  A holder of debt obligations issued by an authority may apply to the Court, ex parte or on any notice that the Court requires, for an order directing an investigation to be made of that authority and of any one or more of its affiliates.

(2)  If, on an application under subsection (1), it appears to the Court that there are sufficient grounds to conduct an investigation to determine whether

                               (a)    the undertaking, business or affairs of the authority or of any of its affiliates is or has been carried on with intent to defraud any person,

                              (b)    the undertaking, business or affairs of the authority or of any of its affiliates are or have been carried on, or the powers of the directors of any such corporation are or have been exercised, in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of a holder of any of the authority’s debt obligations,

                               (c)    the authority or any of its affiliates was formed, or is to be dissolved, for a fraudulent or unlawful purpose, or

                              (d)    persons concerned with the formation, undertaking, business or affairs of the authority or of any of its affiliates have in connection therewith acted fraudulently or dishonestly,

the Court may order an investigation to be made of the authority and of any one or more of its affiliates. 

(3)  An applicant under this Part is not required to give security for costs.

AR 149/90 s122

Powers of the Court

123(1)  On an application under section 122 or on a subsequent application, the Court may make any order it thinks fit, including, without limiting the generality of the foregoing, an order

                               (a)    appointing, fixing the remuneration of or replacing an inspector,

                              (b)    specifying the notice to be given to any interested person, or dispensing with notice to any person,

                               (c)    authorizing the inspector to enter any premises in which the Court is satisfied there might be relevant information and to examine any thing and to make copies of any document or record found on the premises,

                              (d)    requiring any person to produce documents or records to the inspector,

                               (e)    authorizing the inspector to conduct a hearing, administer oaths and examine any person on oath, and prescribing rules for the conduct of the hearing,

                               (f)    requiring any person to attend a hearing conducted by the inspector and to give evidence on oath,

                               (g)    giving directions to the inspector or any interested person on any matter arising in the investigation,

                              (h)    requiring the inspector to make an interim or final report to the Court,

                               (i)    designating the persons to whom all or part of the report is to be sent,

                               (j)    requiring the inspector to discontinue an investigation, or

                              (k)    requiring any person to pay all or part of the costs of the investigation. 

(2)  A report of the inspector shall be published unless the Court otherwise orders.

(3)  Unless the Court otherwise orders, the inspector shall send a copy of his report to the authority. 

(4)  Unless the Court otherwise orders, the authority shall pay the costs of the investigation. 

(5)  Any interested person may apply to the Court for directions on any matter arising in the investigation.

AR 149/90 s123

Powers of inspector

124(1)  An inspector under this Part has the powers set out in the order appointing him and he may also provide information to, or exchange information and otherwise co‑operate with, any public official in Canada or elsewhere who is authorized to exercise investigatory powers and who is investigating, in respect of the authority, any allegation of improper conduct that is the same as or similar to the conduct described in section 122(2). 

(2)  An inspector shall on request produce to an interested person a copy of an order made under this Part.

AR 149/90 s124

Hearings by inspector

125   An individual being questioned at a hearing conducted by an inspector under this Part has a right to be represented by counsel during the questioning.

AR 149/90 s125;164/2010

Evidence

126   A person shall not be excused from attending and giving evidence and producing books, papers, documents or records to an inspector under this Part on the ground that the evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no oral evidence so required shall be used or is receivable against him in any proceedings thereafter instituted against him under any Act of Alberta.

AR 149/90 s126

Absolute privilege

127   An oral or written statement or report made by an inspector or any other person in an investigation under this Part has absolute privilege.

AR 149/90 s127

Solicitor-client privilege

128   Nothing in this Part affects the privilege that exists in respect of a solicitor and his client.

AR 149/90 s128

Inspectors report as evidence

129   A copy of an inspector’s report under section 123, certified as a true copy by the inspector, is admissible as evidence of the facts stated in it without proof of the inspector’s appointment or of his signature.

AR 149/90 s129

Part 13
Remedies and Prosecutions

Definitions

130   In this Part,

                               (a)    “action” means an action under this Regulation or any other law;

                              (b)    “complainant” means, in respect of an authority,

                                        (i)    a present or former registered holder or beneficial owner of a security issued by the authority or by any of its subsidiaries,

                                      (ii)    a present or former director or officer of the authority or of any of its subsidiaries, or

                                     (iii)    any other person who, in the opinion of the Court, is a proper person to make an application under this Part respecting the authority or any of its subsidiaries.

AR 149/90 s130

Derivative action

131(1)  A complainant may apply to the Court for permission

                               (a)    to bring an action in the name and on behalf of the authority or any of its subsidiaries, or

                              (b)    to intervene in an action to which the authority or any of its subsidiaries is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the authority or subsidiary.

(2)  The Court may not grant permission under subsection (1) unless the Court is satisfied that

                               (a)    the complainant has given reasonable notice to the directors of the authority or of its subsidiary, as the case may be, of his intention to apply to the Court under subsection (1) if those directors do not bring, diligently prosecute, defend or discontinue the action,

                              (b)    the complainant is acting in good faith, and

                               (c)    it appears to be in the interests of the authority or of its subsidiary, as the case may be, that the action be brought, prosecuted, defended or discontinued.

AR 149/90 s131;85/2016

Powers of the Court

132   In connection with an action brought or intervened in under section 131 or 133(2)(n), the Court may at any time make any order it thinks fit, including, without limiting the generality of the foregoing, an order

                               (a)    authorizing the complainant or any other person to control the conduct of the action,

                              (b)    giving directions for the conduct of the action,

                               (c)    directing that any amount adjudged payable by a defendant in the action is to be paid, in whole or in part, directly to present and former security holders of the authority or of its subsidiary instead of to the authority or its subsidiary, or

                              (d)    requiring the authority or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action.

AR 149/90 s132

Relief by Court on ground of oppression or unfairness

133(1)  A complainant may apply to the Court for an order under this section, and if, on the application, the Court is satisfied that

                               (a)    any act or omission of the authority or of any of its subsidiaries effects a result,

                              (b)    the undertaking, business or affairs of the authority or of any of its subsidiaries are being or have been carried on in a manner, or

                               (c)    the powers of the directors of the authority or of any of its subsidiaries are or have been exercised in a manner

that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the Court may make an order to rectify the matters complained of.

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

                               (a)    restraining the conduct complained of,

                              (b)    appointing a receiver or receiver‑manager,

                               (c)    amending the authority’s articles or by‑laws,

                              (d)    directing an issue or exchange of securities,

                               (e)    directing the authority or any other person to purchase securities of a security holder,

                               (f)    directing the authority or any other person to pay to a security holder any part of the money paid by him for securities,

                               (g)    varying or setting aside a transaction or contract to which the authority is a party and compensating the authority or any other party to the transaction or contract,

                              (h)    requiring the authority, within a time specified by the Court, to produce to the Court or an interested person financial statements in the form required by the Act or an accounting in any other form that the Court specifies,

                               (i)    compensating an aggrieved person,

                               (j)    directing rectification of the registers or other records of the authority under section 135,

                              (k)    for the liquidation and dissolution of the authority,

                               (l)    directing an investigation under Part 12 to be made,

                             (m)    requiring the trial of any issue,

                              (n)    granting the applicant permission

                                        (i)    to bring an action in the name and on behalf of the authority or of any of its subsidiaries, or

                                      (ii)    to intervene in an action to which the authority or any of its subsidiaries is a party, for the purpose of prosecuting, defending or discontinuing an action on behalf of the authority or of any of its subsidiaries.

(3)  If an order made under this section directs an amendment of the articles or by‑laws of the authority, no other amendment to the articles or by‑laws may be made without the consent of the Court, until the Court otherwise orders.

AR 149/90 s133;85/2016

Court approval of stay, dismissal, discontinuance or settlement

134(1)  An application made or an action brought or intervened in under this Part respecting a subsidiary shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the authority or its subsidiary has been or may be approved by the shareholders of the subsidiary, but evidence of approval by those shareholders may be taken into account by the Court in making an order under section 132 or 133, respecting the subsidiary. 

(2)  An application made or an action brought or intervened in under this Part shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the Court, given on any terms the Court thinks fit, and, if the Court determines that the interests of a complainant may be substantially affected by the stay, discontinuance, settlement or dismissal, the Court may order any party to the application or action to give notice to the complainant.

(3)  A complainant is not required to give security for costs in an application made or action brought or intervened in under this Part. 

(4)  In an application made or an action brought or intervened in under this Part, the Court may at any time order the authority or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable for the interim costs on final disposition of the application or action.

AR 149/90 s134

Court order to rectify records

135   If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the registers or other records of an authority, the authority, a holder of a debt obligation of the authority or any aggrieved person may apply to the Court for an order that the registers or records be rectified, and the Court may so order and may make any further order it thinks fit, including an order compensating a party who has incurred a loss.

AR 149/90 s135

Compliance or restraining order

136   If an authority or a director, officer, employee, agent, auditor, trustee, receiver, receiver‑manager or liquidator of an authority contravenes the Act, this Regulation or the articles or by‑laws of the authority, a complainant or a creditor of the authority may, in addition to any other right he has, apply to the Court for an order directing that person to comply with, or restraining that person from contravening that law or instrument and, on the application, the Court may so order and make any further order it thinks fit.

AR 149/90 s136

Application to Court

137   Where the Act or this Regulation permits a person to apply to the Court, the application must be made in accordance with the Alberta Rules of Court (AR 124/2010).

AR 149/90 s137;164/2010

Offences relating to reports, returns, etc.

138(1)  A person who makes or assists in making a report, return, notice or other document required by the Act or this Regulation to be sent to the Registrar or any other person that

                               (a)    contains an untrue statement of a material fact, or

                              (b)    omits to state a material fact required in it or necessary to make a statement contained in it not misleading in the light of the circumstances in which it was made,

is guilty of an offence and liable to a fine of not more than $5000. 

(2)  If an authority contravenes subsection (1), then, whether or not the authority has been prosecuted or convicted in respect of the contravention, any director or officer of the authority who knowingly authorizes, permits or acquiesces in that contravention is guilty of an offence and liable to a fine of not more than $5000.

(3)  A person is not guilty of an offence described in subsection (1) or (2) if the untrue statement or omission was unknown to him and in the exercise of reasonable diligence could not have been known to him.

AR 149/90 s138

Order to comply

139(1)  If a person is found guilty of an offence against the Act, the court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order that person to comply with the provisions of the Act or this Regulation for the contravention of which he has been found guilty.

(2)  An appeal lies from an order of the Provincial Court under subsection (1) to the Court.

AR 149/90 s139

Limitation on prosecutions

140   A prosecution for an offence against the Act may be instituted at any time within 2 years from the time when the subject matter of the complaint arose, but not thereafter.

AR 149/90 s140

Effect of prosecution on civil remedy

141   No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence against the Act.

AR 149/90 s141

Part 14
Miscellaneous

Fees

142   The fees payable to the Registrar that are prescribed for the purposes of the Act are as set out in Schedule 1.

AR 149/90 s142

Forms

143(1)  The form of the notices required by sections 20 and 24(2) of the Act shall be as set out in Forms 1 and 2 respectively.

(2)  The form of a return required by section 35 of the Act shall be as set out in Form 3. 

(3)  The Registrar may certify documents by issuing a certificate in the form set out in Form 4.

(4)  The Registrar may certify any fact respecting anything filed by him by issuing a certificate in the form set out in Form 5. 

(5)  A form or other document sent to the Registrar must be printed or typewritten on good quality white paper 21.5 cm by 28 cm, legible and suitable for microfilming and photocopying. 

(6)  In a form,

                               (a)    each item must be set out in sequentially numbered sections and be preceded by an appropriate heading,

                              (b)    numbers must be in numeral form,

                               (c)    information must, whenever practicable, be set out in tabular form,

                              (d)    if an item of information does not apply in a particular case, that must be indicated by use of “none”, “nil”, “not applicable”, “N/A” or some similar word or phrase, and

                               (e)    abbreviations formed by the deletion of alphabetic characters

                                        (i)    from the end of a word, must be followed by a period, and

                                      (ii)    from the middle of a word, must not be followed by a period.

(7)  Nothing in subsection (6)(e) prohibits a corporate name from containing, as part of the name, alphabetic characters that are not followed by a period. 

(8)  Where

                               (a)    any information required to be set out in a form is too lengthy to be set out in the space provided in the form, or

                              (b)    an agreement or other document is to be incorporated by reference in and be part of the form,

the form may incorporate the information on the agreement or other document into the form by inserting in the space provided in the form the words “the attached Schedule is incorporated into and forms part of this Form” or similar words, and a separate Schedule is required in respect of each item so incorporated. 

(9)  Except where otherwise provided, all forms and other documents sent to the Registrar must be signed by an officer of the authority authorized to do so by the board and be sent in duplicate.

(10)  The Registrar, on receiving a form or other document for filing, shall stamp both of the copies received with the word “FILED” and shall indicate on them the date of filing, and shall return one of the stamped copies to the person who sent the form.

(11)  In this section, “forms” means forms set out in Schedule 2.

AR 149/90 s143

Registrar provisions

144(1)  The Registrar may accept a photocopied or a photographic copy of a notice or other document required to be sent to him by the Act or this Regulation.

(2)  A notice or document may be sent to or served on the Registrar by leaving it at an office of the Registrar or by mailing it by registered mail addressed to the Registrar at an office of the Registrar and if sent by registered mail is deemed to be received or served at the time it would have been delivered in the ordinary course of mail unless there are reasonable grounds for believing that the Registrar did not receive the notice or document at that time or at all. 

(3)  The Registrar may alter a notice or document, other than an affidavit or statutory declaration, if so authorized in writing by the person who sent the document or by his representative. 

(4)  The Registrar shall keep the information in the records that he is required by the Act to prepare and maintain in respect of an authority

                               (a)    for at least 7 years after he receives the information or the information is created, or

                              (b)    where the authority is dissolved, for at least 5 years after the date of the dissolution.

AR 149/90 s144

Expiry

144.1   For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on June 30, 2020.

AR 194/98 s13;63/2003;151/2009;116/2012;90/2015

Coming into force

145   This Regulation comes into force on the commencement of section 40 of the Act.

AR 149/90 s145

Application of Part 7, Division 2, B.C.A.

146(1)  Division 2 of Part 7, other than section 88.9, of the Business Corporations Act applies with respect to an authority as if the authority were a corporation within the meaning of that Act.

(2)  Subsection (1) has no force after October 1, 1990.

AR 149/90 s146


Schedule 1

Fees

1   The fees payable in respect of this Regulation are as follows:

                               (a)    for a certification under section 143(3)

                                       of a certificate                                                                $25

                                       of each additional page certified                                     1

                              (b)    for a certificate under section 143(4)                           25

                               (c)    for stamping, dating and returning copies
pursuant to section 143(10)

                                        (i)    of a document listed elsewhere                             No
in this Schedule                                         Additional
                                                                                  Fee

                                      (ii)    of a petition                                                            300

                                     (iii)    of another document                                               75

                              (d)    for search - for each authority
(microfiche only)                                                             10

                               (e)    for an uncertified copy of any document
or part thereof, in addition to the fee
for search under clause (d), per page
(except if requested as a portion of a
search, in which case the first 3 pages
are free)                                                                                1

                               (f)    for registration of mortgage                                            50

                               (g)    for registration of a change to a
registered mortgage                                                          20

                              (h)    for registration of discharge or
partial discharge of mortgage                                         20

                               (i)    for appointment of a receiver                                         20

                               (j)    for a photocopy of Registrar’s
register of mortgages, per page                                         1

                              (k)    for a telephone or written search                                   10

                               (l)    for facsimile (FAX) services
provided per transaction                                                   5

                             (m)    to accompany annual return sent
to Registrar                                                                          8

                              (n)    repealed AR 73/96 s2

2  The Registrar may waive the payment by

                               (a)    a department or agency of the Government, or

                              (b)    a Provincial agency as defined in the Financial Administration Act

of a fee set out in this Schedule where he is satisfied that the department, agency or Provincial agency will not recover the fee from a third party.

AR 149/90 Sched. 1;352/91;73/96

Schedule 2

Forms

Form 1

Regional Airports Authorities Act
Section 20

Notice of Directors or Change of Directors

1.  Name of Regional Airports Authority:                                       

2.  Corporate access number:                                                            

3.  On the        day of            , 20   , the following person(s) was/were appointed director(s):

Name

Mailing Address (Including Postal Code)

Appointed By

Effective Date of Appointment

 

 

 

 

 

 

 

 

 

 

 

 

4.  The following person(s) ceased to hold office as director(s):

Name

Mailing Address (Including Postal Code)

Effective Date of Cessation

 

 

 

 

 

 

 

 

 

5.  As of this date, the directors of the authority are:

Name

Mailing Address (Including Postal Code)

Appointed By

Effective Date of Appointment

 

 

 

 

 

 

 

 

 

 

 

 

6.  Are at least two‑thirds of the directors 1.  Canadian Citizens or Landed Immigrants and 2. Resident Canadians?

                                        Yes       No 

7.  (Date)        (Signature)       (Title)      (Telephone No.)              

   (year)      (month)      (day)   

Form 2

Regional Airports Authorities Act
Section 24(2)

Notice of Address or Notice of Change of Address

1.  Name of Regional Airports Authority:                                       .

2.  Corporate access number:                

3.  Head office of Authority.  (The head office is also designated as the Authority’s registered office.)   (street address, including  postal code, or legal land description)

4.  Separate address for service by mail (if any).  (Post Office Box, Including Postal Code): 

5.  Revocation of address for service by mail   (give details)      

6.  (Date)          (Signature)      (Title)      (Telephone No.)             

Form 3

Regional Airports Authorities Act
Section 35

Annual Return

1.  Name of Authority:                                                                       

2.  Corporate access number:              

3.  Address of registered (and head) office:                                   

4.  Separate address for service by mail (box number only)
     (if any):                                                                                            

5.  At this date, the following are the directors of the Authority:

Name                               Mailing Address (including postal code) 

6.  At this date, the following are the officers (not being directors) of the Authority:

Name                               Mailing Address (including postal code) 

7.  The following corporations are subsidiaries of the Authority:

     Names of subsidiaries                                                                   

8.  (Date)        (Signature)        (Title)       (Telephone No.)            

Form 4

Regional Airports Authorities Act and Regulation
Section 143(3) of Regulation

Certificate

The Registrar of Corporations for the Province of Alberta, Canada, hereby certifies that the documents annexed to this certificate, and relating to                 are true and accurate photocopies of documents which are on the file maintained in this office, whereof they purport to be copies.

Given under his seal of office in the Province of Alberta, this         day of                   20    .

                                         (Office of the Registrar of Corporations)

Form 5

Regional Airports Authorities Act and Regulation
Section 143(4) of Regulation

Certificate

                   (Name of Authority)                                                        

I hereby certify                                                                                    
                                                                                                               

                                                             (Registrar of Corporations)   

                                                                                         (Date)            

AR 149/90 Sched. 2