1998/99 Legislative Session: 3rd Session, 36th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


BILL 85 -- 1999

COMPANY ACT

... continued ...

 

Part 2 -- Incorporation

Division 1 -- Formation of Companies

Formation of company

12 One or more individuals, corporations, limited liability companies or corporations sole may form a company by filing a notice of articles with the registrar and by complying with this Part.

Notice of articles

13 Unless this Act provides otherwise, the notice of articles must

(a) be in the prescribed form,

(b) set out the full names and mailing addresses of the incorporators,

(c) set out, for each of the directors or, in the case of the notice of articles filed to incorporate the company, for each of the individuals who are to be the first directors,

(i) the full name of the individual, and

(ii) the prescribed address or addresses for the individual,

(d) identify by its delivery address and its mailing address the office that is, or, in the case of the notice of articles filed to incorporate the company, that is to be, the registered office of the company,

(e) identify by its delivery address and its mailing address the office that is, or, in the case of the notice of articles filed to incorporate the company, that is to be, the records office of the company,

(f) set out the name of the company, or, in the case of the notice of articles filed to incorporate the company, set out

(i) the name reserved for the proposed company under section 23 exactly as reserved, and any reservation number given for it, or

(ii) if a name has not been reserved, a statement that the name by which the proposed company is to be incorporated is the name created by adding "B.C. Ltd." after the incorporation number for the company,

(g) set out, in the prescribed manner, any translation of the company's name that the company intends to use outside of Canada,

(h) describe the authorized share structure of the company in accordance with section 51 and, if the company intends to issue more than one kind, class or series of shares, set out the kinds, classes and series of shares that the company may issue and give an identifying name to each kind, class and series of those shares,

(i) set out, in respect of each class and series of shares, whether there are or were special rights or restrictions attached to the shares of that class or series and, if there are or were those special rights or restrictions, the date of each resolution altering those special rights or restrictions that was passed after the later of

(i) the day on which this Act comes into force, and

(ii) the date on which the company is recognized under this Act,

(j) set out whether the articles impose any restrictions on the ability of the directors to allot or issue shares, and

(k) otherwise comply with this Act.

Articles

14 (1) A company must have articles that

(a) set rules for its conduct,

(b) are mechanically or electronically produced, and

(c) are divided into consecutively numbered paragraphs.

(2) The articles of a company must

(a) set out every restriction, if any, on

(i) the business that may be carried on by the company, and

(ii) the powers that the company may exercise, and

(b) set out any special rights or restrictions that are attached to the shares of any class or series of shares.

(3) The articles of a company must, in respect of its name,

(a) set out the name of the company or, in the case of the company's first articles, set out whichever of the following is applicable:

(i) the name of the company as disclosed on the notice of articles under section 13 (f) (i);

(ii) the information in respect of the corporate name that is referred to on the notice of articles under section 13 (f) (ii), and

(b) set out, in the prescribed manner, any translation of the company's name that the company intends to use outside of Canada.

(4) Without limiting subsections (1) to (3), articles of a company, other than articles referred to in section 17 (b), 283 (1) (a) (ii), 284 (b), 298 (1) (b) (iii) (B), 319 (b), 367 (7) or 442 (6), must

(a) contain the agreement of each incorporator to take, in the incorporator's name, one or more shares of the company,

(b) for each person designated as an incorporator on the notice of articles,

(i) have a signature line with the full name of that person set out legibly under the signature line, and

(ii) set out legibly opposite the signature line of that person,

(A) the date of signing by that person, and

(B) the number of shares to be taken by that person and, if there are shares of different classes or series of shares, the number of shares of each class and series of shares taken by that person, and

(c) be signed on the applicable signature line by each person designated on the notice of articles as an incorporator.

(5) The articles may specify a municipality or geographic area in British Columbia within which one or both of the company's registered office and records office must be located.

(6) A company may, by its articles, adopt all or any of the provisions of Table A.

(7) A company must set out in its articles the incorporation number for the company once it is known, and any individual may insert that incorporation number in the articles whether or not there has been any resolution to direct or authorize that insertion.

(8) No company may include in its articles a part or division entitled "Statutory Reporting Company Provisions" unless that company

(a) was, immediately before the coming into force of this Act, a reporting company within the meaning of the Companies Act, 1973, and

(b) has not been the subject of an order of the registrar made under section 439.

Incorporation

15 (1) After the registrar accepts a record as a notice of articles and files that notice of articles to incorporate a company, the registrar must prepare a certificate of incorporation for the company and the company is incorporated on the date and time of incorporation referred to in the certificate of incorporation.

(2) The registrar is to record, in the certificate of incorporation, the following as the date and time of incorporation:

(a) if neither the date nor the time is specified by the notice of articles, the date and time that the notice of articles is filed with the registrar;

(b) if a date but no time is specified, the later of

(i) the date and time that the notice of articles is filed with the registrar, and

(ii) the beginning of the date specified;

(c) if both a date and time are specified, the later of

(i) the date and time that the notice of articles is filed with the registrar, and

(ii) the date and time specified.

(3) After a company is incorporated under this Part, the registrar must

(a) provide to the company

(i) a certificate of incorporation showing the name and incorporation number of the company and the date and time of its incorporation, and

(ii) a certified copy of the filed notice of articles,

(b) provide a certified copy of the filed notice of articles to each of the persons designated on the notice of articles as incorporators, at the mailing addresses shown for those persons on the notice of articles,

(c) provide a notice of the incorporation of the company to the person identified as the completing party on the notice of articles filed to incorporate the company, and

(d) publish a notice of the incorporation of the company in the Gazette.

(4) If the registrar, by inadvertence, files a notice of articles that does not comply with this Act, the company, on the written request of the registrar sent by registered mail, must pass the resolutions and file with the registrar the records the registrar requires, after which

(a) the registrar must correct the corporate register, and

(b) without limiting section 414, the registrar may, if it appears to him or her to be necessary, on delivery of the certificate of incorporation to him or her, make the necessary corrections.

Obligations of completing party

16 A completing party must,

(a) before inserting, transmitting or communicating the information that is required to be inserted, transmitted or communicated in or in respect of a notice of articles in order to incorporate a company, examine the articles of the proposed company to ensure that the articles appear to have been originally signed by each of the persons designated as incorporators on the notice of articles, and

(b) after the company referred to in paragraph (a) is incorporated, provide to the company the originally signed articles examined by the completing party by leaving those articles at the delivery address of, or by mailing them by registered mail addressed to the mailing address of, the records office of the company.

Articles on incorporation

17 If, by the date on which a notice of articles is filed with the registrar to incorporate a company under this Part,

(a) articles for the company have been signed by one or more of the persons designated as incorporators on the notice of articles, the company has those articles as its articles, or

(b) none of the persons designated as incorporators on the notice of articles has signed articles for the company, the company has Table A as its articles.

Effect of incorporation

18 The incorporators of a company are, on the date of incorporation, and the incorporators and all other shareholders of the company, for so long as they remain shareholders of the company, are, after the incorporation, a company with the name contained in the notice of articles, capable of exercising the functions of an incorporated company with the powers and with the liability on the part of the shareholders provided in this Act.

Evidence of incorporation

19 Whether or not the requirements precedent and incidental to incorporation have been complied with, either a certificate of incorporation, whether as originally issued by the registrar or as corrected under section 414, or a notation in the corporate register that a company has been incorporated is conclusive evidence, for the purposes of this Act and for all other purposes, that the company has been duly incorporated under this Act as of the date and time shown in the certificate of incorporation or in the corporate register, as the case may be.

Effect of notice of articles and articles

20 (1) A pre-existing company and its shareholders are bound by the company's memorandum and articles in the manner contemplated by subsection (3) after the company is recognized to the date on which a notice of articles for the company is filed with the registrar under section 367 (2) or 442 (1).

(2) A company and its shareholders are bound by the company's articles and notice of articles in the manner contemplated by subsection (3),

(a) in the case of a pre-existing company, after the company has complied with section 367 (2) or 442 (1), or

(b) in any other case, after the company is recognized under this Act.

(3) A company and its shareholders are bound by the company's memorandum and articles or by its articles and notice of articles, as the case may be, and by any alterations made to those records under this Act or a former Companies Act to the same extent as if those records

(a) had been signed and sealed by the company and by each shareholder, and

(b) contained covenants on the part of each shareholder and their respective successors and legal personal representatives to observe the memorandum and articles or the articles and notice of articles, as the case may be.

Pre-incorporation contract

21 (1) In this section:

"facilitator" means a person referred to in subsection (2) who, before a company is incorporated, purports to enter into a contract in the name of or on behalf of the company;

"pre-incorporation contract" means a purported contract referred to in subsection (2);

"resultant company" means a company incorporated after a pre-incorporation contract is entered into in the company's name or on the company's behalf.

(2) Subject to subsection (8), if, before a company is incorporated, a person purports to enter into a contract in the name of or on behalf of the company,

(a) the person is deemed to warrant to the other parties to the purported contract that the company will

(i) come into existence within a reasonable time, and

(ii) adopt, within the meaning of this section, the purported contract within a reasonable time after the company comes into existence,

(b) the person is liable to the other parties to the purported contract for damages for a breach of that warranty, and

(c) the measure of damages for that breach of warranty is the same as if

(i) the company existed when the purported contract was made,

(ii) the person who made the purported contract on behalf of the company had no authority to do so, and

(iii) the company refused to ratify the purported contract.

(3) If, after a pre-incorporation contract is entered into, the company in the name of which or on behalf of which the pre-incorporation contract was purportedly entered into by the facilitator is incorporated, the resultant company may, within a reasonable time after its incorporation, adopt that pre-incorporation contract by any act or conduct signifying its intention to be bound by it.

(4) On the adoption of a pre-incorporation contract under subsection (3),

(a) the resultant company is bound by and is entitled to the benefits of the pre-incorporation contract as if the resultant company had been incorporated at the date of the pre-incorporation contract and had been a party to it, and

(b) the facilitator ceases, except as provided in subsections (6) and (7), to be liable under subsection (2) in respect of the pre-incorporation contract.

(5) If the resultant company does not adopt the pre-incorporation contract under subsection (3) within a reasonable time after the resultant company is incorporated, the facilitator or the other parties to that pre-incorporation contract may apply to the court for an order directing the resultant company to restore to the applicant any benefit received by the resultant company under the pre-incorporation contract.

(6) Whether or not the resultant company adopts the pre-incorporation contract under subsection (3), the resultant company, the facilitator or the other parties to the pre-incorporation contract may apply to the court for an order

(a) setting the obligations of the resultant company and the facilitator under the pre-incorporation contract as joint or joint and several, or

(b) apportioning liability between the resultant company and the facilitator.

(7) On an application under subsection (6), the court may, subject to subsection (8), make any order it considers appropriate.

(8) A facilitator is not liable under subsection (2) in respect of the pre-incorporation contract if the parties to the pre-incorporation contract have, in writing, expressly agreed.

Division 2 -- Corporate Names

Name of company

22 Subject to this Division, a company recognized under this Act has as its name on the date of its recognition

(a) the name shown for the company on its notice of articles if

(i) that name was reserved for the company under section 23 and that reservation remains in force at the date of the recognition of the company, or

(ii) that name was reserved for the company under section 23 and, although the reservation has expired, on the date of the recognition of the company the reserved name complies with the prescribed requirements and with the other requirements set out in this Division, or

(b) in any other case, the name created by adding "B.C. Ltd." after the incorporation number for the company.

Reservation of name

23 (1) A person wishing to reserve a corporate name must file with the registrar an application, in the prescribed manner and form, for that name.

(2) After receiving an application to reserve a corporate name under subsection (1), the registrar may reserve the corporate name for a period of 2 months from the date of reservation or any longer period that the registrar, in the registrar's sole discretion, considers appropriate.

(3) After receiving a request in the prescribed form for the extension of a reservation of a corporate name, the registrar may, if that request is received before the expiry of that reservation, extend that reservation for the period that the registrar, in the registrar's sole discretion, considers appropriate.

(4) The registrar must not reserve a corporate name for the purposes of this section unless that name complies with the prescribed requirements and with the other requirements set out in this Division.

Form of name for a company

24 (1) A company must have the word "Limited", "Limitée", "Incorporated", "Incorporée" or "Corporation" or the abbreviation "Ltd.", "Ltée", "Inc." or "Corp." as part of and at the end of its name.

(2) For all purposes, each of the words "Limited", "Limitée", "Incorporated", "Incorporée" and "Corporation" is interchangeable with its abbreviation "Ltd.", "Ltée", "Inc." and "Corp.", respectively.

(3) A person must not use in British Columbia any name of which "limited", "limitée", "incorporated", "incorporée", "corporation" or "international financial business" or any contraction of them, is a part unless

(a) the person is a corporation entitled or required to use the words, or

(b) in the case of "limited" or "limitée", the person is

(i) a limited liability company registered under section 376 as an extraprovincial company, or

(ii) a limited partnership, within the meaning of the Partnership Act, that is entitled or required to use that word.

(4) Without limiting subsection (3), a person must not carry on business under a name that includes "(VCC)" as part of its name unless it is a company registered under the Small Business Venture Capital Act.

(5) Without limiting subsection (3), a person must not carry on business under a name that includes "(EVCC)" as part of its name unless it is a company registered under Part 2 of the Employee Investment Act.

Multilingual names

25 (1) Subject to this Division, the name of a company must be in one or both of

(a) an English form, and

(b) a French form.

(2) If the name of a company is in both an English form and a French form, the company may use, and may be legally designated by, either form or a combination of both forms for the purposes of section 27 or any other purpose.

(3) A company may translate its name into any other language and may be designated by that translated name outside Canada if

(a) the translated name is set out, in the prescribed manner, in its articles and notice of articles, and

(b) the notice of articles discloses, in the prescribed manner, that the company intends to use the translated name outside Canada.

(4) A company may, by a directors' resolution or an ordinary resolution, authorize an alteration to its notice of articles, and resolve to alter its articles, to bring those records into conformity with subsection (3).

Assumed names

26 (1) If the name of a foreign corporation or a limited liability company contravenes one or more of the prescribed requirements or other requirements set out in this Division, the foreign corporation or limited liability company must, if it wishes to be registered with its own name, reserve an assumed name under section 23, and the registrar may register the foreign corporation or limited liability company as an extraprovincial company with its own name, and that extraprovincial company may carry on business in British Columbia, if the foreign corporation or limited liability company undertakes to carry on, under that assumed name, all of the business the foreign corporation or limited liability company undertakes in British Columbia.

(2) An extraprovincial company referred to in subsection (1)

(a) must acquire all property, rights and interests in British Columbia under its assumed name,

(b) is entitled to all property, rights and interests acquired and is subject to all liabilities incurred under its assumed name as if that property, rights and interests and those liabilities had been acquired and incurred under its own name,

(c) may sue or be sued in its own name, its assumed name or both, and

(d) may, with the approval of the registrar, cancel its assumed name and carry on business in British Columbia under the name with which it was registered.

(3) No act of an extraprovincial company referred to in subsection (1), including a transfer of property, rights or interests to or by it, is invalid merely because the act contravenes subsection (2).

(4) This section does not apply to a federal corporation.

Name to be displayed

27 (1) A company or extraprovincial company must display its name or, in the case of an extraprovincial company referred to in section 26 (1), its assumed name, in legible English or French characters,

(a) in a conspicuous position at each place in British Columbia at which it carries on business,

(b) in all its notices and other official publications used in British Columbia,

(c) on all its contracts, business letters and orders for goods and on all its invoices, statements of account, receipts and letters of credit used in British Columbia, and

(d) on all bills of exchange, promissory notes, endorsements, cheques and orders for money used in British Columbia and signed by it or on its behalf.

(2) If a company has a seal, the company must have its name in legible characters on that seal.

Registrar may order change of corporate name

28 (1) Without limiting section 381, if for any reason a corporate name contravenes any of the prescribed requirements or any of the other requirements set out in this Division, the registrar may, in writing and giving reasons, order the corporation to change its corporate name to one that meets all of those requirements.

(2) This section does not apply to a federal corporation.

Other changes of name

29 (1) If the Superintendent of Financial Institutions notifies the registrar of the superintendent's disapproval of the name of a captive insurance company, the registrar must order the company to change its name to one that meets the approval of both the registrar and superintendent.

(2) The registrar may, in writing, and giving reasons, order a company to change its name to one that does not include the abbreviation "(VCC)" if the administrator under the Small Business Venture Capital Act informs the registrar that

(a) the company is not registered under the Small Business Venture Capital Act,

(b) the administrator has refused to register the company under section 3 of that Act, or

(c) the registration of the company under that Act has been revoked.

(3) The registrar may, in writing, and giving reasons, order a company to change its name to one that does not include the words "International Financial Business" or the abbreviation "I.F.B." if the superintendent, as defined under the International Financial Business Act, informs the registrar that

(a) the company has been refused a licence or the renewal or reinstatement of a licence under that Act, or

(b) the licence of the company has been revoked under section 9 of that Act.

(4) The registrar may, in writing, and giving reasons, order a company to change its name to one that does not include the abbreviation "(EVCC)", if the administrator under the Employee Investment Act informs the registrar that

(a) the company is not registered under Part 2 of that Act,

(b) the administrator has refused to register the company under Part 2 of that Act, or

(c) the registration of the company under Part 2 of that Act has been revoked.

(5) If the registrar is informed by the proper officer of a self governing professional society, institute, college or association that a corporation permitted to practise the profession has had that permission revoked by the society, institute, college or association, the registrar must order the corporation to change its name to one that

(a) does not imply the corporation is authorized to practise the profession, and

(b) is in all other respects acceptable to the registrar.

Division 3 -- Capacity and Powers

Capacity and powers of company

30 A company has the capacity and the rights, powers and privileges of an individual of full capacity.

Joint tenancy in property

31 (1) In this section, "corporation" means a company, a body corporate, a body politic and corporate, an incorporated association or a society, however and wherever incorporated, but does not include

(a) a municipality,

(b) a corporation sole, or

(c) a foreign corporation or limited liability company that is not registered as required by Part 11.

(2) Every corporation is capable of acquiring and holding property in joint tenancy in the same manner as an individual, and, if a corporation and one or more individuals or other corporations become entitled to property under circumstances or by virtue of an instrument that would, if the corporation had been an individual, have created a joint tenancy, they are entitled to the property as joint tenants.

(3) Despite subsection (2), acquiring and holding property by a corporation in joint tenancy is subject to the same conditions and restrictions as attach to acquiring and holding property by a corporation in severalty.

(4) If a corporation is a joint tenant of property, on the corporation's dissolution the property devolves on the other joint tenant.

Extraterritorial capacity

32 Unless restricted by its charter or by an Act, a corporation created in British Columbia has the capacity

(a) to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside British Columbia to the extent that the laws of that jurisdiction permit, and

(b) to accept from any lawful authority outside British Columbia powers and rights concerning the corporation's business and powers.

Restricted businesses and powers

33 (1) A company must not

(a) carry on any business or exercise any power that it is restricted by its memorandum or articles from carrying on or exercising, or

(b) exercise any of its powers in a manner inconsistent with its memorandum or articles.

(2) No act of a company, including a transfer of property, rights or interests to or by the company, is invalid merely because the act is inconsistent with its memorandum or articles or otherwise contravenes subsection (1).

Division 4 -- Company Offices

Registered and records offices

34 (1) Subject to section 39, a company must maintain a registered office and a records office in British Columbia.

(2) The registered office and the records office may be located at the same place.

(3) The mailing address and delivery address of the first registered office, and the mailing address and delivery address of the first records office, of a company recognized under this Act are,

(a) for a company incorporated under this Act, the mailing addresses and delivery addresses shown for those offices on the notice of articles filed with the registrar under section 12 to incorporate the company,

(b) for a special Act corporation converted to a company under this Act, the mailing addresses and delivery addresses shown for those offices on the notice of articles referred to in section 283 (1) (a) (i),

(c) for a company that resulted from the amalgamation of 2 or more corporations under this Act, the mailing addresses and delivery addresses shown for those offices on the notice of amalgamation referred to in section 294 (1) (a), and

(d) for a foreign corporation continued into British Columbia as a company under this Act, the mailing addresses and delivery addresses shown for those offices on the continuation application referred to in section 315 (1) (a).

Change of registered or records office

35 (1) Despite section 276 but subject to sections 34 (1) and 37, a company that has been authorized to do so under subsection (2) of this section may change one or both of the mailing address and delivery address of one or both of its registered office and records office by filing with the registrar a notice of change of address in the prescribed form.

(2) A company is authorized to submit a notice of change of address for filing with the registrar if the change of address reflected by the notice has been authorized

(a) in the manner required by the articles, or

(b) if the articles are silent as to the manner in which a change of address is to be authorized, by a directors' resolution.

Change of agent's office

36 (1) A person who is authorized by a company to maintain the registered office or records office of the company at the person's place of business or residence may, if there is to be a change to one or both of the address and the location of that place of business or residence, before that change occurs, file with the registrar a notice of change of address that

(a) is in the prescribed form,

(b) reflects that change, and

(c) specifies, as the date and time that the notice of change of address is to take effect, the beginning of the day following the date on which the address or location, as the case may be, is to change.

(2) A person referred to in subsection (1) must, if there is a change to one or both of the address and the location of the place of business or residence at which the person maintains the registered office or records office and if a notice of change of address reflecting that change has not been filed under subsection (1), promptly after that change occurs, file with the registrar a notice of change of address, in the prescribed form, to reflect that change.

(3) If the person referred to in subsection (1) or (2) is not the only director of the company, the person must, before or promptly after filing a notice of change of address under this section, send a copy of that notice to a director who is not that person.

Completion of change of address

37 (1) A notice of change of address filed with the registrar under section 35 or 36 takes effect

(a) if no date is specified by the notice of change of address, at the beginning of the day following the date on which the notice of change of address is filed with the registrar, or

(b) if a date is specified, on the later of

(i) the beginning of the day following the date on which the notice of change of address is filed with the registrar, and

(ii) the beginning of the date specified.

(2) A notice of change of address filed with the registrar under section 35 or 36 takes effect whether or not it has been authorized in accordance with section 35 (2).

(3) At the time that the notice of change of address filed with the registrar under section 35 or 36 takes effect, the notice of articles of the company is altered to reflect that change and, after that alteration, the registrar must provide a notice to the company confirming the change of address and the corresponding change to the notice of articles.

Transfer of registered office by agent

38 (1) In this section and section 39, "applicant agent" means a person

(a) who is not a director or officer of the company, and

(b) who is authorized by the company to maintain the registered office of the company at the person's residence or place of business.

(2) An applicant agent who maintains the registered office of a company at the person's residence or place of business may apply to the registrar to transfer the location of the registered office to the residence of a director or officer of the company.

(3) At least 21 days before submitting an application under subsection (2) to the registrar, the applicant agent must send to the director or officer referred to in subsection (2), the following:

(a) a notice in writing asking that the company file with the registrar a notice of change of address under section 35 to transfer the location of its registered office;

(b) a notice in writing

(i) advising that, unless the notice of change of address requested under paragraph (a) of this subsection is filed with the registrar within 21 days after the date of the notice sent under this paragraph, the applicant agent will make an application under this section, and

(ii) specifying the residence address of the director or officer as the address to which the location of the registered office is to be transferred by the application.

(4) The notices referred to in subsection (3) may be consolidated into one record.

(5) An application under subsection (2) must be in the prescribed form and must be accompanied by an affidavit of the applicant agent

(a) confirming that subsection (3) has been complied with,

(b) proposing that the registered office be located at the residence address specified, under subsection (3) (b) (ii), in the notice referred to in that subsection,

(c) describing that residence address as a delivery address and as a mailing address,

(d) providing the reasons for the applicant agent's belief that the proposed location, as described, is the residence of the director or officer referred to in the application, and

(e) providing proof

(i) that the director or officer referred to in the application received the notices sent under subsection (3), or

(ii) in a case to which subsection (6) applies, that the applicant agent complied with the court order made under that subsection.

(6) An applicant agent who is unable to ensure receipt by the director or officer of the notices referred to in subsection (3) may apply to the court for an order of substituted service of those notices and may serve those notices in accordance with any order made in response to that application.

(7) A director or officer who receives a notice under subsection (3) may apply to the court for an order that the location of the registered office

(a) not be transferred, or

(b) not be transferred to the residence of the director or officer.

(8) On the 11th day after the registrar receives a completed application under this section, the notice of articles of the company is altered to reflect the transfer sought in the application unless, before that 11th day, the court orders otherwise and a copy of the entered court order is filed with the registrar.

(9) After the notice of articles is altered under subsection (8) to reflect the change of address of the registered office, the registrar must mail notice of that change of address to

(a) the applicant agent at the previous mailing address of the registered office, and

(b) the company at the new mailing address for the registered office.

Elimination of registered office

39 (1) If an applicant agent for a company is unable to locate any of the directors or officers of the company, the applicant agent may apply to the court to eliminate the registered office of the company.

(2) An application under subsection (1) must be accompanied by an affidavit from the applicant agent as to the steps taken to locate the directors and officers of the company.

(3) On an application under subsection (1), the court may, if satisfied that no director or officer can, after reasonable efforts, be located, make the order it considers appropriate, including an order that the registered office of the company be eliminated at the time and on the terms and conditions that the court considers appropriate.

(4) If the court orders that a registered office be eliminated under subsection (3), the applicant agent must promptly submit a copy of the entered order to the registrar for filing.

(5) The registered office of a company is eliminated,

(a) if no date is specified by the order, at the beginning of the day following the date on which a copy of the entered order is filed with the registrar, or

(b) if a date is specified, on the later of

(i) the beginning of the day following the date on which a copy of the entered order is filed with the registrar, and

(ii) the beginning of the date specified.

(6) After the registered office of a company is eliminated under this section, the notice of articles is altered to reflect that elimination and the registrar must mail a copy of the entered court order to the records office of the company.

(7) The service of records on and the mailing, sending or provision of records to a company that has had its registered office eliminated under this section may be effected in the manner ordered by the court under subsection (3), and any reference in this Act to mailing, by ordinary or registered mail, delivering, sending or providing a record to the registered office of a company is, if that company has had its registered office eliminated under this section, deemed to be a reference to providing the record in the manner ordered by the court under subsection (3).

Transfer of records office by agent

40 (1) In this section, "applicant agent" means a person

(a) who is not a director or officer of the company, and

(b) who is authorized by the company to maintain the records office of the company at the person's residence or place of business.

(2) An applicant agent who maintains the records office of a company at the person's residence or place of business may apply to the court to change the location of the records office to the residence of a director or officer of the company if, at least 21 days before filing the application with the court, the applicant agent sends to that director or officer, the following:

(a) a notice in writing asking that the company file with the registrar a notice of change of address under section 35 to transfer the location of its records office;

(b) a notice in writing

(i) advising that, unless the notice of change of address requested under paragraph (a) of this subsection is filed with the registrar within 21 days after the date of the notice sent under this paragraph, the applicant agent will make an application under this section, and

(ii) specifying the residence address of the director or officer as the address to which the location of the records office is to be transferred by the application.

(3) The notices referred to in subsection (2) may be consolidated into one record.

(4) Unless, within 21 days after the date of the notice sent under subsection (2), the company files with the registrar a notice of change of address under section 35 to transfer the location of its records office, the applicant agent may apply to the court to transfer the location of the records office to the residence of a director or officer of the company.

(5) An application under subsection (4) must be accompanied by an affidavit of the applicant agent

(a) confirming that subsection (2) has been complied with,

(b) proposing that the records office be located at the residence address specified, under subsection (2) (b) (ii), in the notice referred to in that subsection,

(c) describing that residence address as a delivery address and as a mailing address,

(d) providing the reasons for the applicant agent's belief that the proposed location, as described, is the residence of the director or officer referred to in the application, and

(e) providing proof that the director or officer referred to in the application received the notices sent under subsection (2).

(6) A director or officer who receives a notice under subsection (2) may apply to the court for an order that the location of the records office

(a) not be transferred, or

(b) not be transferred to the residence of the director or officer.

(7) If, on an application under subsection (4) or (6), the court orders that a records office be transferred, the applicant agent must promptly submit a copy of the entered order to the registrar for filing.

(8) A transfer of location of the records office of a company takes effect on the later of

(a) the date on which a notice is filed with the registrar that the records kept at the company's records office have been physically transferred to the new location of the records office ordered by the court, and

(b) whichever of the following applies:

(i) if neither the date nor the time is specified by the order, on the date and time that a copy of the entered order is filed with the registrar;

(ii) if a date but no time is specified, on the later of

(A) the date and time that a copy of the entered order is filed with the registrar, and

(B) the beginning of the date specified;

(iii) if both a date and time are specified, on the later of

(A) the date and time that a copy of the entered order is filed with the registrar, and

(B) the date and time specified.

(9) At the time that a transfer of location of the records office of a company takes effect, the notice of articles of the company is altered to reflect that change.

(10) After the notice of articles is altered under this section, to reflect the change of address of the records office, the registrar must mail a copy of the entered court order to the registered office of the company.

Division 5 -- Company Records

Definition

41 In this Division, "company's record" means a record kept by or for a company under section 42.

Records office records

42 (1) Subject to subsections (7) to (9), a company must keep at its records office

(a) its certificate of incorporation, certificate of conversion, certificate of amalgamation or certificate of continuation, as the case may be, any certificate of change of name issued in respect of the company under section 281 (5) and any certificate of restoration applicable to the company,

(b) if the registrar has provided to the company one or more certified copies of records in fulfillment of a requirement under this Act to do so, other than in response to a request by the company for the certified copy, each of those certified copies,

(c) its central securities register unless, under section 111 (4), the directors designate a different location in which event the company must

(i) maintain a central securities register at that location, and

(ii) keep at the records office a notice identifying the mailing address and delivery address of the location at which that register is kept,

(d) its register of directors,

(e) the minutes of every general meeting, class meeting and series meeting,

(f) the signed copy of each consent resolution of the shareholders or of shareholders holding shares of a class or series of shares, including, if the consents of the shareholders are expressed on more than one record, each of those records,

(g) unless contained in the minutes of the applicable meeting, the complete text of any resolution proposed to a meeting of shareholders, other than a resolution referred to in paragraph (f), and a statement as to whether the resolution passed,

(h) the minutes of every meeting of directors or of a committee of directors, and, unless contained in the minutes of the applicable meeting, a list of every director present at the meeting,

(i) a copy of each written dissent provided to the company under section 174 (5) or (8),

(j) the signed copy of each consent resolution passed by directors or by a committee of directors, including, if the consents of the directors are expressed on more than one record, each of those records,

(k) unless contained in the minutes of the applicable meeting,

(i) the complete text of any resolution proposed to a meeting of directors or of a committee of directors, other than a resolution referred to in paragraph (j), and a statement as to whether the resolution passed, and

(ii) each written record referred to in section 165 or 172 that records the disclosure made under Division 3 of Part 5 by a current director or a current senior officer,

(l) a copy of each consent, if any, to act as a director received by the company,

(m) the description, provided under section 168 (2), of the interest of a director or senior officer in a contract or transaction,

(n) a copy of each of the audited financial statements of the company and its subsidiaries, whether or not consolidated with the financial statements of the company, including the auditor's reports,

(o) if the company is an amalgamated company, copies of the records described in the following paragraphs for each of the amalgamating companies:

(i) paragraphs (a) to (g), (l) and (p) to (s);

(ii) paragraphs (h) to (k);

(iii) paragraph (m);

(iv) paragraph (n),

(p) a copy of each entered order made in respect of the company under sections 39, 40, 44, 152 (3), 245 (3), 247 (2), 267, 305, 333 (3) (a) or (6) and 334,

(q) a copy of any report provided to the company under section 272 (1) or (2),

(r) a copy of each resignation record referred to in section 151 that records an individual's resignation as a director, and

(s) a copy of the company's notice of articles and any notice provided by the registrar in respect of that record under section 37 (3), 38 (9) or 150 (3).

(2) In addition to the records referred to in subsection (1), a company recognized under this Act must keep at its records office the following records:

(a) in the case of a company incorporated under this Act, the signed copy, if any, of the articles provided to the company under section 16 (b);

(b) in the case of a company converted under this Act from a special Act corporation to a company, unless that company has Table A as its articles, the articles that are, under section 284, applicable to the converted company;

(c) in the case of a company that resulted from the amalgamation under this Act of 2 or more corporations, unless that company has Table A as its articles, the articles that are, under section 298 (1) (b), applicable to the amalgamated company;

(d) in the case of a foreign corporation continued into British Columbia as a company under this Act, unless that company has Table A as its articles, the articles that are, under section 319, applicable to the continued company.

(3) In addition to the records referred to in subsection (1), a pre-existing company must keep at its records office

(a) each of the memoranda, the articles and any alterations to those records that are returned, or that the registrar may return, to the company under section 367 (11) or 442 (13), and, until those records are returned, copies of those records,

(b) any orders, approvals, consents or exemptions given by the executive director under section 277 (6), 367 (13) or 427 (5),

(c) subject to subsection (4) of this section, its register of transfers unless that register is kept elsewhere in the manner provided by section 69 of the Company Act, R.S.B.C. 1996, c. 62, and

(d) any records, not otherwise retained by the company under subsection (1) of this section, that the company was required to keep under the Companies Act, 1973 that relate to the period before the coming into force of this Act.

(4) A pre-existing company need not keep a register of transfers if the whole of the information that was, under section 69 of the Company Act, R.S.B.C. 1996, c. 62, required to be kept in that register is included in the company's central securities register kept under subsection (1) (c) of this section.

(5) In addition to any records it is required to keep under subsections (1) and (2), a foreign corporation continued into British Columbia as a company must keep at its records office

(a) a copy of its original charter,

(b) the resolutions passed in relation to the amendments required under section 315 (3), and

(c) if the foreign corporation was continued into British Columbia as a company under this Act, the records relating to the period before the continuation of the company that the foreign corporation was required to keep by the jurisdiction from which it was continued.

(6) The person who maintains the records office for the company must note on each record received by the company's records office the date and time on which that record is received if that record is one that the company is, under this section, required to keep at its records office.

(7) Any record that a company is required to keep at its records office under this section must be deposited in that office promptly after the company's receipt of the record and may be kept in a prescribed form whether or not this section requires the company to keep

(a) the original of the record,

(b) a signed copy of the record, or

(c) the record in any other specified form.

(8) Despite subsections (1), (3) and (5) but without limiting subsection (9), records of a type referred to in subsection (1) (h), (i), (j), (k), (m), (n), (o) (ii), (iii) or (iv) or (r) that are kept by the company at its records office under this section may, after 10 years from the date on which they were deposited in the records office, be kept by the company at a location other than the records office so long as those records can be produced from that other location by the person who maintains the records office for the company on 48 hours' notice, not including Saturdays and holidays.

(9) Despite subsections (1), (2), (3) and (5), a company may keep all or any of the records referred to in subsection (1), (2), (3) or (5) at a location other than the records office so long as those records are

(a) kept in a prescribed form, and

(b) available for examination during statutory business hours at the records office by means of a computer terminal or other electronic technology.

(10) A company must make reasonable efforts to keep the records that it is required to keep under this section in a current and complete state.

Form of records

43 (1) Subject to section 42, records that are required by this Act to be prepared or kept by or on behalf of a company may be

(a) in a bound or looseleaf form, or

(b) entered or recorded in or by any prescribed data processing or information retrieval system.

(2) A company and any agent of the company who has a duty to prepare or keep any of the records required by this Act must take adequate precautions in preparing and keeping those records so as to

(a) avoid loss, mutilation and destruction,

(b) avoid falsification of entries, and

(c) provide simple, reliable and prompt access.

Missing records

44 (1) If the court is satisfied that a record that was or that should have been deposited in the records office of a company has been destroyed or is lost, the court may, on application by an interested person, make the order it considers appropriate and may, without limitation,

(a) make a declaration, based on the evidence available to it, as to what was contained in the record,

(b) declare the record, including a record in respect of which a declaration under paragraph (a) has been made, to have existed with full legal effect from the date and time that the company is recognized or from any other date and time that the court may order, and

(c) if a declaration is made under paragraph (a) in respect of the contents of a record, order that some or all of those contents apply or do not apply to a person or to an event, whether or not those contents would have applied to the person or the event on or after the date ordered by the court under paragraph (b).

(2) If an order is made under subsection (1) in respect of a record, the provisions of this Division that are applicable to that record apply to a copy of the entered order.

Examination of records

45 (1) The following persons may, without charge, examine and take extracts from all of the records that a company is required to keep under section 42:

(a) a current director of the company;

(b) if and to the extent permitted by the articles, any person, including a shareholder of the company.

(2) A former director of a company and, if and to the extent permitted by the articles, a former shareholder of a company may, without charge, examine and take extracts from all of the records that the company is required to keep under section 42 that relate to the period when that person was a director or shareholder, as the case may be.

(3) Despite any provision in the articles to the contrary, the following persons may, without charge, examine and take extracts from all of the records that a company is required to keep under section 42, other than the records referred to in section 42 (1) (h) to (k) and (o) (ii):

(a) a shareholder of the company;

(b) a former shareholder of the company to the extent that those records relate to the period when that person was a shareholder.

(4) Any person may, without charge, examine and take extracts from all of the records that a company is required to keep under section 42, other than the records referred to in section 42 (1) (h) to (k), (m) and (o) (ii) and (iii), if the company

(a) is a reporting issuer,

(b) has any of its securities, within the meaning of the Securities Act, listed for trading on any exchange in any jurisdiction, or

(c) was, immediately before the coming into force of this Act, a reporting company within the meaning of the Companies Act, 1973 and has not, since that date, been the subject of an order made under section 439 of this Act.

(5) In the case of a company that is not one referred to in subsection (4), on payment of the prescribed fee to the person who maintains the records office for the company, any person may examine and take extracts from any of the records that the company is required to keep under section 42, other than the records referred to in section 42 (1) (e) to (k), (m), (n) and (o) (ii) to (iv).

(6) Subject to subsection (7), an examination of a company's records that is authorized by this section may be conducted during statutory business hours.

(7) A company may, by ordinary resolution, impose restrictions on the time or times during which a person, other than a current director, may examine and take extracts from the company's records under this section, but those restrictions must permit examination of those records during the time or times prescribed.

(8) Despite any other provision of this section, a person, other than a current director of a company, wishing to examine and take extracts from a securities register of the company must, unless excused from doing so by the company, first provide to the person who has custody or control of that register

(a) an affidavit of the person seeking to examine and take extracts from the register, or if that applicant is a corporation, of a director or officer of that corporation,

(i) stating the name and address of the applicant or, if the applicant is a corporation, its name and the mailing address and, if different, the delivery address of its registered office or equivalent, and

(ii) stating that the register is required and will be used only for corporate purposes, and

(b) for an applicant other than one to whom subsection (1), (2), (3) or (4) applies, payment of any reasonable fee charged for that examination by the person having custody or control of the register.

Copies

46 (1) On the request of a person who is entitled under section 45 to examine and take extracts from a company's record and on payment by that person of the prescribed fee, the person who maintains the records office for the company must provide a copy of that record to that person

(a) promptly, or

(b) in the case of a record that is, under section 42 (8), kept at a location other than the records office, within 48 hours, not including Saturdays and holidays, after the request is received.

(2) Despite subsection (1), a shareholder of a company is entitled on request and without charge to receive from the person who maintains the records office for the company a copy of

(a) the notice of articles or memorandum, as the case may be, and

(b) the articles.

(3) A copy of a record referred to in subsection (1) or (2) must be provided in the manner agreed to by the person who maintains the records office and the person seeking to obtain the copy or, in the absence of such an agreement,

(a) must be provided by mailing it to the person requesting a copy if

(i) the record is not one referred to in section 42 (1) (e) to (k), (m), (n) and (o) (ii) to (iv) or, in the case of a company referred to in section 45 (4), the record is not one referred to in section 42 (1) (h) to (k), (m), (n) and (o) (ii) to (iv),

(ii) the person so requests, and

(iii) the person pays the prescribed mailing fee, or

(b) may, in any other case, be provided by making it available for pick up at the records office.

List of shareholders

47 (1) In this section, "basic list" means the list provided under subsection (4).

(2) A person may apply to a company, or to the person who maintains the central securities register for the company, for a list setting out the following as disclosed by the central securities register:

(a) the names and addresses of the shareholders of the company;

(b) the number of shares held by each of those shareholders.

(3) An application under subsection (2) must be in writing and must include

(a) an affidavit of the person seeking the list, or if the applicant is a corporation, of a director or officer of that corporation, stating

(i) the name and mailing address of the applicant or, if the applicant is a corporation, its name and the mailing address and, if different, the delivery address of its registered office or equivalent, and

(ii) that the list is required and will be used only for corporate purposes, and

(b) payment of the fee charged under subsection (7).

(4) On receipt of the application materials referred to in subsection (3), the company or the person who maintains the central securities register for the company must provide, to the applicant, the requested list made up to a date, specified in the list, that is not more than 14 days before the receipt of the application by the company or the person who maintains the central securities register for the company.

(5) If the person applying for a list under subsection (2) so requests in the application provided under subsection (3), the company or the person who maintains the central securities register for the company must, after receipt of the application materials referred to in subsection (3), provide, to the applicant, supplemental lists that meet the requirements of subsection (6).

(6) Supplemental lists under subsection (5) must set out any changes that occurred to the information in the basic list on each of the days following the date up to which the information in the basic list is current.

(7) The company or the person who maintains the central securities register for the company may charge a reasonable fee for any basic list provided under subsection (4) and any supplemental list provided under subsection (5).

Remedies on denial of access or copies

48 (1) A person who claims to be entitled under this Division to examine or receive a copy of a company's record or to receive a list may apply to the registrar for an order under subsection (2) of this section if that person is not given access to or a copy of that record.

(2) If, on an application made by a person referred to in subsection (1), it appears to the registrar that the company or the person who maintains the records office for the company has failed to comply with a requirement of this Division, the registrar may order the company to provide to the registrar

(a) a certified copy of the record referred to in subsection (1) of this section, or

(b) an affidavit of a director or officer of the company setting out why the applicant is not entitled to receive access to or a copy of that record.

(3) After making an order under subsection (2), the registrar must send a copy of that order

(a) by registered mail to the mailing address of the registered office of the company, and

(b) by ordinary mail to the person who made the application under subsection (1).

(4) The company referred to in an order made under subsection (2) must comply with that order within 10 days after the date of the order.

(5) If the company provides a certified copy of a record to the registrar under subsection (2) (a), the registrar must promptly provide the certified copy of the record to the applicant.

(6) If the company provides an affidavit of a director or officer to the registrar under subsection (2) (b), the registrar must promptly provide the affidavit to the applicant.

(7) A person referred to in subsection (1) may apply to the court for an order that the person be given access to or a copy of a record if

(a) an affidavit respecting the record is provided to the person under subsection (6), or

(b) the company refuses or neglects to comply with subsection (4).

(8) Without limiting the power of the registrar under section 416 (1) (c), the court may, on an application under subsection (7) of this section, make the order it considers appropriate and may, without limitation, do one or more of the following:

(a) make an order that access to or a copy of a record be provided to the applicant within the time specified by the order;

(b) make an order directing the company to do one or both of the following:

(i) change the location of the records office of the company to a location that the court considers appropriate;

(ii) replace the person who maintains the records office for the company;

(c) order the company to pay to the applicant damages in an amount that the court considers appropriate;

(d) order the company or the person who maintains the records office for the company or both to pay to the applicant the applicant's costs of and related to the application.

(9) An order may be made under subsection (8) in addition to a legal proceeding, conviction or penalty for an offence under Division 3 of Part 12.

Company to file annual report

49 Subject to section 406 (2), a company must annually, within 2 months after each anniversary of the date on which the company was recognized, file with the registrar an annual report in the prescribed form containing information that is current to the most recent anniversary.


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