This bulletin is current up to close of business on April 27, 2020. As circumstances remain fluid, please check with in with your usual Blakes contact for any updates.
On April 24, 2020, the Ontario government made an order under the Emergency Management and Civil Protection Act (Ontario) amending its previous order regarding corporate meeting requirements in order to expand the types of corporations to which the order applies and to address certain additional matters related to corporate meetings.
As noted in our April 2020 Blakes Bulletin: Canadian Governments Suspend Corporate Deadlines, the initial order had the effect of temporarily suspending and replacing certain provisions of Ontario’s Business Corporations Act (OBCA) and Corporations Act (OCA) in order to suspend the deadline for holding annual shareholder or member meetings, and to facilitate telephone and electronic meetings of shareholders, members and directors by overriding any provisions to the contrary in a corporation’s constating documents.
The amending order, the full text of which can now be accessed on the Ontario government’s website, addresses additional matters related to the holding of corporate meetings, including flexibility regarding changes to meetings for which the notice of meeting has already been sent and alternative means of voting, and provides a similar arrangement of accommodations to corporations governed by the Co-operative Corporations Act (CCA) and Condominium Act, 1998 (Condominium Act). As with the initial order, the amendments are retroactive to March 17, 2020.
With respect to OBCA corporations, the cumulative effect of the temporary measures is summarized below. Similar accommodations apply to corporations incorporated under the OCA, CCA and Condominium Act.
If the last day on which an annual shareholder meeting is required to be held is a day that falls within the period of a declared emergency, the last day on which the meeting is instead required to be held is no later than the 90th day after the day the emergency is terminated
If the last day on which an annual shareholder meeting is required to be held is a day that falls within the 30-day period that begins on the day after the day an emergency is terminated, the last day on which the meeting is instead required to be held is no later than the 120th day after the day the emergency is terminated
The directors of a corporation may call a meeting that is to be held on a day within these timelines that is reasonable in the circumstances
Despite any provision in the articles, by-laws or unanimous shareholder agreement of a corporation that provides otherwise, a meeting of the shareholders may be held by telephonic or electronic means and a shareholder who, through those means, votes at the meeting or establishes a communications link to the meeting shall be deemed to be present at the meeting
NOTICE OF SHAREHOLDERS’ MEETING
If a notice of a meeting of shareholders has been sent for a meeting to be held on a day that falls within the period of the declared emergency and, after the notice is sent, the date, time or place of the meeting is changed in order to hold the meeting by telephonic or electronic means, another notice of meeting is not required to be sent but the persons entitled to receive the notice must be informed of the change in a manner and within a time that is reasonable in the circumstances
MANNER OF VOTING
Where a meeting of shareholders is held by telephonic or electronic means, the chair shall conduct the vote by a show of hands or by a ballot—in accordance with existing requirements—if feasible, otherwise the chair may direct voting by alternate means
INFORMATION TO BE LAID BEFORE ANNUAL MEETING
For an annual meeting of shareholders held on a date that is in the period that begins on March 17, 2020, and ends on the 120th day after the day the declared emergency is terminated, the requirement that the directors place before the meeting financial statements for a period ended not more than six months before the meeting has been temporarily relaxed to eliminate the six-month maximum. This amendment addresses a technical omission in the initial order that required a corporation to hold a meeting within six months after its financial year end, notwithstanding the general suspension of meeting deadlines.
Despite any provision in the articles, by-laws or unanimous shareholder agreement of a corporation that provides otherwise, a meeting of directors or of a committee of directors may be held by means of telephone, electronic or other communication facilities, to permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and a director participating in such a meeting by such means is deemed to be present at that meeting
For further information, please reach out to a member of our Corporate & Commercial or Capital Markets groups or your usual Blakes contact at any time.
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