Law:Business Development Bank of Canada Act
From Law Delta
S.c. 1995, c. 28
Assented to 1995-07-13
An Act to continue the Federal Business Development Bank under the name Business Development Bank of Canada
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. This Act may be cited as the Business Development Bank of Canada Act.
2. In this Act,
« Banque »
“Bank” means the Business Development Bank of Canada continued by subsection 3(1);
“bill of lading”
« connaissement »
“bill of lading” has the same meaning as in subsection 425(1) of the Bank Act;
« conseil »
“Board” means the Board of Directors of the Bank;
« règlement administratif »
“by-law” means a by-law of the Bank;
« président du conseil »
“Chairperson” means the Chairperson of the Board;
Version anglaise seulement“Crown” means Her Majesty in right of Canada;
« titre de créance »
“debt obligation” means a bond, debenture, note, investment certificate or other evidence of indebtedness or a guarantee of a corporation, whether secured or unsecured;
« ministre compétent »
“Designated Minister” means such member of the Queen’s Privy Council for Canada as may be designated by the Governor in Council as the Minister for the purposes of this Act;
« administrateur »
“director” means a member of the Board;
« entreprise »
“enterprise” means an organized economic activity carried on by one or more persons;
« bureau »
“Executive Committee” means the Executive Committee of theoard;
“goods, wares and merchandise”
« effets, denrées ou marchandises »
“goods, wares and merchandise” has the same meaning as in subsection 425(1) of the Bank Act;
« personne »
“person” includes a trust, a partnership and an association of natural persons or corporations;
« président »
“President” means the President of the Bank;
« résolution »
“resolution” means a resolution of the Board;
« valeurs mobilières »
“securities” means the shares of any class or series of shares or the debt obligations of a corporation and includes certificates evidencing those shares or debt obligations;
« filiale »
“subsidiary” has the same meaning as in subsection 83(6) of the Financial Administration Act;
« récépissé d’entrepôt »
“warehouse receipt” has the same meaning as in subsection 425(1) of the Bank Act.
Establishment And Organization Of The Bank
Status of the Bank
Continuation of Federal Business Development Bank
3. (1) The Federal Business Development Bank established by the Federal Business Development Bank Act is continued as a body corporate under the name “Business Development Bank of Canada”.
(2) The head office of the Bank must be at a place in Canada that the Governor in Council may designate.
(3) The Bank has, in respect of its powers, all the rights, powers, privileges and capacity of a natural person.
Agent of the Crown
(4) The Bank is for all purposes an agent of the Crown.
Purpose of Bank
4. (1) The purpose of the Bank is to support Canadian entrepreneurship by providing financial and management services and by issuing securities or otherwise raising funds or capital in support of those services.
Consideration to small and medium-sized enterprises
(2) In carrying out its activities, the Bank must give particular consideration to the needs of small and medium-sized enterprises.
Board of Directors
Membership of Board
5. (1) The Bank has a Board of Directors comprised of the Chairperson, the President and not fewer than three, but no more than thirteen, other directors.
Limit on directors from public service
(2) No more than two of the directors, excluding the Chairperson and President, may be appointed from the federal public administration.
1995, c. 28, s. 5; 2003, c. 22, s. 224(E).
Previous VersionAppointment of Chairperson
6. (1) The Chairperson is to be appointed by the Governor in Council to hold office during pleasure for a term that the Governor in Council considers appropriate.
Appointment of President
(2) Notwithstanding subsection 105(5) of the Financial Administration Act, the President is to be appointed by the Governor in Council to hold office during good behaviour for a term that the Governor in Council considers appropriate and may be removed for cause.
(3) The President is eligible for reappointment on the expiration of his or her term of office.
Appointment of directors
(4) The other directors are to be appointed by the Designated Minister, with the approval of the Governor in Council, for a term not exceeding four years that will ensure, as far as possible, the expiration in any one year of the terms of office of not more than half of the directors.
(5) The Governor in Council may appoint an individual to act as a director if a director is absent or unable to act.
(6) No individual is eligible to be appointed or to continue as President, Chairperson or a director if the individual is
(a) neither a Canadian citizen nor a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
(b) a Canadian citizen who is not ordinarily resident in Canada;
(c) a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for more than one year after first becoming eligible to apply for Canadian citizenship;
(d) a member of the Senate or House of Commons or a member of the legislature of a province; or
(e) employed in the public service of a province.
1995, c. 28, s. 6; 2001, c. 27, s. 208; 2006, c. 9, s. 229.
Previous VersionFunctions of Board
7. (1) The Board shall direct and manage the business and affairs of the Bank.
(2) The Board may, by resolution, make by-laws to regulate the business and affairs of the Bank.
(3) The Board may establish an Executive Committee, or any other committee or advisory group that the Board considers advisable, and determine its composition and duties and the tenure of its members.
(4) The Board may delegate power to, and specify duties and authority of, the Executive Committee to act in all matters that are not by this Act or any by-law or resolution specifically reserved to be done by the Board.
Officers and Employees
Duties of Chairperson
8. The Chairperson shall carry out the duties determined by by-law.
Duties of President
9. (1) The President is the chief executive officer of the Bank and has, on behalf of the Board, the direction and management of the business and affairs of the Bank with authority to act in all matters that are not by this Act or any by-law or resolution specifically reserved to be done by the Board or the Executive Committee.
Absence or incapacity
(2) If the President is absent or unable to act, or if the office of President is vacant, the Board may authorize an officer or employee of the Bank to act as President, but that person may not act as President for a period of more than ninety days without the approval of the Governor in Council.
Officers and employees
10. The Bank may employ such officers and employees, and may engage such agents, advisers and consultants, as it considers necessary to carry out the purpose of this Act and for the proper conduct of its business and the Bank may fix the terms and conditions of their employment or engagement.
Delegation of powers and specification of duties
11. The Board may delegate power to, and specify the duties and authority of, any officer, employee or agent of the Bank to act in all matters that are not by this Act or any by-law or resolution specifically reserved to be done by the Board or the Executive Committee.
12. All directors, officers and employees of the Bank, and all agents, advisers and consultants whose services are engaged by the Bank, must, before entering on their duties, take an oath or make a solemn affirmation of office and confidentiality in the form set out in the schedule before a commissioner of oaths or other person having authority to administer the oath or solemn affirmation in the place where it is taken or made.
Remuneration and Benefits
Remuneration of directors
13. (1) The Chairperson and each director, except the President and any director employed in the federal public administration, are entitled to be paid by the Bank the remuneration fixed by the Governor in Council for their time to attend meetings of the Board or any committee of the Board and to perform their duties under this Act.
Remuneration of President
(2) The President is entitled to be paid by the Bank the remuneration fixed by the Governor in Council.
Expenses of directors
(3) Directors are entitled to be paid by the Bank reasonable travel and living expenses incurred in connection with the performance of their duties under this Act while absent from their ordinary places of residence.
Remuneration and expenses of officers, etc.
(4) Officers, employees, agents, advisers and consultants are entitled to be paid by the Bank the remuneration, expenses and benefits that the Bank may determine.
(5) The Board may make by-laws respecting
(a) the establishment, management and administration of a pension fund for the officers and employees of the Bank and their dependants;
(b) the contributions to be made to the fund by the Bank;
(c) the provision of benefits under the fund;
(d) the payment of pensions; and
(e) the investment of the money of the fund.
1995, c. 28, s. 13; 2003, c. 22, s. 224(E).
Specific Powers Of The Bank
Loans, investments and guarantees
14. (1) The Bank may make loans to, or investments in, any person, or give guarantees in relation to any person.
How loans, etc., may be made
(2) The loans, investments and guarantees may be made or given directly, through arrangements with other financial institutions or by the Bank as a member of a financing syndicate.
Criteria for making loans, etc.
(3) The loans, investments and guarantees may be made or given only where, in the opinion of the Board or any committee or officer designated by the Board,
(a) the person is engaged, or is about to engage, in an enterprise in Canada;
(b) the amount invested, or to be invested, in the enterprise by persons other than the Bank and the character of the investment are such that the Bank may reasonably expect that those persons will have a continuing commitment to the enterprise; and
(c) the enterprise may reasonably be expected to prove successful.
Complementary to commercial financial institutions
(4) The loans, investments and guarantees are to fill out or complete services available from commercial financial institutions.
Acquiring and dealing with property
(5) In any circumstances where the Bank may make a loan or investment to a person, or give a guarantee in relation to a person, under this section, the Bank may
(a) purchase or otherwise acquire real or personal property, including accounts receivable; and
(b) subject to any right of redemption that may exist, hold, lease to the person or subsequently sell, dispose of or otherwise deal with the property.
1995, c. 28, s. 14; 2001, c. 34, s. 9(F).
15. (1) The Bank may
(a) acquire and hold security or a security interest of any kind and in any form for the due discharge of obligations under a loan, investment, guarantee or agreement that it makes or gives;
(b) surrender or reconvey the security or security interest and acquire and hold, in exchange, security or a security interest of any kind and in any form;
(c) realize the security or security interest made, acquired or held by it on the loan, investment, guarantee or agreement; and
(d) exchange, lease, sell, assign, convey or otherwise dispose of the loan, investment, guarantee, agreement, security or security interest.
(2) Without limiting the generality of the powers of the Bank under this section, the Bank may, for the due discharge of the obligations referred to in paragraph (1)(a),
(a) acquire and hold a warehouse receipt or bill of lading as security; or
(b) take security on goods, wares and merchandise in the same form and manner as security on such property may be taken by a bank under section 427 of the Bank Act.
Warehouse receipts and bills of lading
(3) Where the Bank acquires and holds a warehouse receipt or bill of lading as security, subsections 428(1), (2), (7), (8), (9) and (12) and 435(2) and section 436 of the Bank Act apply, with any modifications that the circumstances require, as if the Bank were a bank under that Act.
Goods, wares and merchandise
(4) Where the Bank takes security on goods, wares and merchandise, section 427 and subsections 428(1), (2), (7), (8), (9) and (12) of the Bank Act apply, with any modifications that the circumstances require, as if the Bank were a bank under that Act.
Deemed loan or advance
(5) Where the Bank issues a guarantee or otherwise makes a promise to effect a payment, the Bank is deemed to lend money or make an advance for the purposes of subsections (3) and (4) and the provisions of the Bank Act that they refer to.
Acquisition of loans
16. The Bank may acquire and deal with as its own any loan, investment or guarantee made or given by another person if
(a) the loan, investment or guarantee would meet the Bank’s eligibility criteria in subsection 14(3); or
(b) it is part of a block of loans, investments or guarantees the majority of which meet those criteria.
17. The Bank may provide, or enter into agreements for the provision of,
(a) business planning services;
(b) management counselling and training, including seminars, conferences and meetings; and
18. (1) The Bank may borrow money by any means, including issuing and selling or pledging debt obligations of the Bank.
(2) The debt obligations may, in accordance with their terms, be subordinated to secured or unsecured indebtedness of the Bank and liability under them may be limited to the remaining assets of the Bank, after payment of indebtedness ranking prior to the debt obligations.
(3) The Bank may invest any money administered by it
(a) in debentures, bonds, stocks, bankers’ acceptances or other securities of or guaranteed by any member of the Canadian Payments Association, or the government of Canada or a province; or
(b) in any other manner that the Minister of Finance may approve.
(4) The Bank may enter into any transaction for the purpose of reducing risk in the financial management of the Bank, including any financial instrument or agreement whose object is the management of financial risks, such as interest rate or currency exchange agreements, options, futures contracts and any other similar agreements.
(5) The Bank may pledge any of its assets or give deposits as security for any debt obligations issued by the Bank or as security for the due performance of its obligations under any financial management agreement.
Non-application of certain provisions
(6) For greater certainty, this section has effect notwithstanding sections 100 and 101 of the Financial Administration Act.
Loans to the Bank from Consolidated Revenue Fund
19. At the request of the Bank, the Minister of Finance may, out of the Consolidated Revenue Fund, lend money to the Bank on any terms and conditions that the Minister of Finance may fix.
Other Services and Programs
20. The Bank may enter into agreements with, and act as agent for, any department or agency of the government of Canada or a province, or any other body or person, for the provision of services or programs to, on behalf of or jointly with that body or person and, subject to subsection 14(3), may deliver financial assistance on their behalf under the agreement.
21. The Bank may carry out duties or functions that may be assigned to it by the Designated Minister in relation to the administration of any program supporting Canadian entrepreneurship, to the extent that it is able to recover the costs of carrying out the duties or functions.
22. The Bank may
(a) accept deposits as security for the due performance of any arrangement or agreement with the Bank;
(b) determine and charge interest and any other form of compensation for services provided by the Bank in the exercise of its powers under this Act;
(c) procure the incorporation, dissolution or amalgamation of subsidiaries and acquire or dispose of any shares in them;
(d) acquire and dispose of any interest in any entity by any means;
(e) acquire, hold, exchange, lease, sell or otherwise dispose of any interest in real or personal property and retain and use the proceeds of disposition; and
(f) generally, do all other things that are incidental or conducive to attaining the purpose of this Act and the exercise of the powers of the Bank.
Capital Of The Bank
23. (1) The authorized capital of the Bank consists of an unlimited number of common shares with a par value of $100 each and an unlimited number of preferred shares without par value, but the paid-in capital of the Bank, together with any contributed surplus relating to it and any proceeds referred to in paragraph 30(2)(d) that have been prescribed as equity, must not at any time exceed $3,000,000,000.
Issuance of shares
(2) The shares of the Bank may be issued only to the Designated Minister to be held in trust for the Crown.
Subscription by Designated Minister
(3) Where the Board recommends that the Designated Minister subscribe for unissued shares of the Bank, the Designated Minister may, if the Minister of Finance concurs, subscribe for the amount that the Designated Minister considers desirable.
Payment out of Consolidated Revenue Fund
(4) The amount of the subscription is to be paid to the Bank out of the Consolidated Revenue Fund at any time and in any amount that the Board may require.
1995, c. 28, s. 23; 2009, c. 2, s. 264.
Previous VersionRights of common shares
24. (1) The rights conferred by common shares include
(a) the right to vote at any meeting of shareholders;
(b) the right to receive dividends declared on common shares; and
(c) the right to receive the remaining property of the Bank on dissolution.
Rights of preferred shares
(2) The rights conferred by preferred shares of any class or series are limited as follows:
(a) the holders of preferred shares are not entitled to vote at meetings of shareholders;
(b) dividends, once declared, are limited to the rate, whether fixed or variable, cumulative or non-cumulative, that may be provided for in the by-laws; and
(c) participation in the remaining property of the Bank on dissolution is limited to the consideration paid for the shares plus any dividend accumulated or declared and unpaid, but no more.
Declaration and payment of dividends
25. (1) In any financial year of the Bank, it may declare and pay to the shareholders of the Bank any dividends out of the retained earnings or surplus account of the Bank.
(2) The Bank may not declare or pay a dividend if there are reasonable grounds for believing that
(a) the Bank is, or would after the payment be, unable to pay its liabilities as they become due; or
(b) the realizable value of the Bank’s assets would, after the payment, be less than the aggregate of its liabilities and paid-up capital of all classes.
Participation in dividends
(3) If any cumulative dividends or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and the return of capital.
Cancellation or restoration of shares
26. Shares, or fractions of them, of any class or series of shares issued by the Bank and purchased, redeemed or otherwise acquired by it must be cancelled or, if the number of them is limited and the by-laws so authorize, they may be restored to the status of authorized but unissued shares of that class or series.
By-laws relating to shares
27. Subject to the approval of the Governor in Council on the recommendation of the Minister of Finance, the Board may make by-laws
(a) setting out the rights, privileges, restrictions and conditions attaching to preferred shares, creating one or more additional classes of preferred shares and generally determining the rights and obligations of the holders of preferred shares, including
(i) limiting the right of the shareholders to specific dividends or repayments, whether fixed or variable,
(ii) authorizing the purchase or redemption of the shares by the Bank, either at the Bank’s option or at the shareholder’s request, and
(iii) limiting or extending the rights of the shareholders in any other way;
(b) authorizing the issue of any class of shares in one or more series and authorizing the Board to fix, by resolution, the maximum number of shares in each series and to determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series, subject to any limitations set out in the by-law;
(c) determining a maximum number of shares with respect to any class or series of preferred shares;
(d) changing authorized shares without par value, whether issued or not, into shares with a par value and changing authorized shares with a par value, whether issued or not, into shares without par value;
(e) consolidating or subdividing shares;
(f) converting shares of any class into shares of another class; and
(g) increasing or reducing the issued share capital or any part of it, with or without distribution of paid-in capital or reduction of liability on any of the shares.
Hybrid capital instruments
28. (1) With the approval of the Governor in Council on the recommendation of the Minister of Finance, the Bank may issue to persons other than the Crown hybrid capital instruments prescribed, in whole or in part, as equity of the Bank under paragraph 30(2)(d).
Crown not liable
(2) The Crown is not in any way liable for payment of amounts owing under an instrument issued under subsection (1).
Instruments not shares
(3) For greater certainty, an instrument issued under subsection (1) is not a share within the meaning of Part X of the Financial Administration Act.
29. Moneys may be appropriated by Parliament and paid out to the Bank for use in any of its activities.
Limit on borrowings and guarantees
30. (1) The aggregate of
(a) the borrowings of the Bank under subsection 18(1) and section 19, and
(b) the contingent liabilities of the Bank in the form of guarantees given by it
must not at any time exceed twelve times the equity of the Bank.
Definition of equity
(2) For the purpose of subsection (1), the equity of the Bank consists of
(a) the amounts paid for its shares, including any contributed surplus;
(b) the retained earnings of the Bank, which may be positive or negative;
(c) amounts paid to the Bank as capital by Parliamentary appropriation; and
(d) such proceeds of debt instruments, hybrid capital instruments or other arrangements as may be prescribed as equity by the Governor in Council.
Conflict Of Interest
31. In section 33,
« demandeur »
“applicant” means a person who applies to the Bank for assistance in the form of a loan, investment, guarantee, purchase or lease;
« personne intéressée »
“interested person” means
(a) the spouse, common-law partner within the meaning of section 2 of the Bank Act, child, brother, sister or parent of a director,
(b) the spouse, or the common-law partner within the meaning of section 2 of the Bank Act, of a child, brother, sister or parent of a director, or
(c) the parent, sister or brother of the spouse, or of the common-law partner within the meaning of section 2 of the Bank Act, of a director.
1995, c. 28, s. 31; 2000, c. 12, s. 26.
32. The Bank shall not grant a loan, investment or guarantee to a director or officer of the Bank.
1995, c. 28, s. 32; 2001, c. 34, s. 10.
33. (1) An applicant must disclose in writing to the Bank whether the applicant is an interested person or, if the applicant is a firm or corporation, whether a partner of the firm or a shareholder, director or officer of the corporation is an interested person or a director or officer of the Bank.
Submission of application to Board for approval
(2) If the applicant discloses that the applicant is an interested person, or that a partner, shareholder, director or officer is an interested person or a director or an officer of the Bank, the application must be submitted to the Board for approval before the Bank enters into an agreement to provide the assistance.
Director must not be at meeting or vote
(3) A director must not be present at a meeting of the Board when the Board is considering an application, or vote on a resolution relating to it, if the applicant is
(a) a person related to the director as described in paragraph (a), (b) or (c) of the definition “interested person” in section 31; or
(b) a firm or corporation of which the director, or a person referred to in paragraph (a), is a partner, shareholder, director or officer.
(4) The amount of each agreement referred to in this section and the name of the person, firm or corporation with whom the agreement is entered into must be included in the annual report that the Bank is required to submit under subsection 150(1) of the Financial Administration Act.
1995, c. 28, s. 33; 2001, c. 34, s. 11.
34. Notwithstanding section 121 of the Financial Administration Act, the financial year of the Bank is the period of twelve months beginning on April 1 and ending on the next March 31, unless the Governor in Council directs otherwise.
Exemption from taxes
35. The Bank is exempt from taxes imposed by the Income Tax Act.
36. (1) Five years after this Act comes into force, and every ten years afterward, the Designated Minister must have a review of the provisions and operation of this Act undertaken in consultation with the Minister of Finance.
Report to Parliament
(2) Within one year after the review is undertaken, the Designated Minister must submit to Parliament a report on the review.
Review of report
(3) The report must be reviewed by any committee of the Senate or of the House of Commons, or any joint committee, that may be designated or established for the purpose of reviewing the report.
37. (1) Subject to subsection (2), all information obtained by the Bank in relation to its customers is privileged and a director, officer, employee or agent of, or adviser or consultant to, the Bank must not knowingly communicate, disclose or make available the information, or permit it to be communicated, disclosed or made available.
(2) Privileged information may be communicated, disclosed or made available
(a) for the purpose of the administration or enforcement of this Act and legal proceedings related to it;
(b) for the purpose of prosecuting an offence under this Act or any other Act of Parliament;
(c) to the Minister of National Revenue solely for the purpose of administering or enforcing the Income Tax Act or the Excise Tax Act; or
(d) with the written consent of the person to whom the information relates.
Use of Bank’s names or initials
38. Except with the consent in writing of the Bank, a person must not in any prospectus or advertisement, or for any other business purpose, use the name of the Bank or any of the following names or initials: “Federal Business Development Bank”, “Banque fédérale de développement”, “Industrial Development Bank”, “Banque d’expansion industrielle”, “B.D. Canada”, “B.D.C.”, “B.D.B.C.”, “B.F.D.” or “F.B.D.B.”.
1995, c. 28, s. 38; 2001, c. 34, s. 12.
39. A person who contravenes section 37 or 38 is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding six months, or to both.
“hybrid capital instrument”
40. The Governor in Council may, by regulation, define “hybrid capital instrument”.
Continuation of Federal Business Development Bank
42. (1) The Bank continues for all purposes the existence of the Federal Business Development Bank established by the Federal Business Development Bank Act.
(2) Without limiting the generality of subsection (1),
(a) the property of the Federal Business Development Bank continues to be the property of the Bank;
(b) the Bank continues to be liable for the obligations of the Federal Business Development Bank;
(c) an existing cause of action, claim or liability to prosecution relating to the Federal Business Development Bank is unaffected;
(d) a civil, criminal or administrative action or proceeding pending by or against the Federal Business Development Bank may be continued to be prosecuted by or against the Bank; and
(e) a conviction against, or ruling, order or judgment in favour of or against, the Federal Business Development Bank may be enforced by or against the Bank.
Capital vests in Bank
43. (1) The capital paid in by Canada with respect to the Federal Business Development Bank as of the coming into force of this Act is vested in the Bank as its paid-in capital and is converted into common shares of the Bank on the basis of one fully paid common share for each $100 of paid-in capital.
Definition of “capital”
(2) The capital vested in the Bank by subsection (1) includes
(a) amounts referred to in paragraph 28(1)(a) of the Federal Business Development Bank Act;
(b) amounts paid in under subsection 28(1) of that Act; and
(c) amounts paid in as capital by Parliamentary appropriation.
44. to 55. (Amendments)
Oath Or Solemn Affirmation Of Office
I,..., solemnly swear (or affirm) that I will faithfully, truly and to the best of my judgement, skill and knowledge, perform the duties required of me as a director (or officer, employee or agent, as the case may be) of (or adviser or consultant to, as the case may be) the Business Development Bank of Canada (the “Bank”) and that properly relate to my duties as a director (or officer, employee or agent, as the case may be) of (or adviser or consultant to, as the case may be) the Bank.
I also solemnly swear (or affirm) that I will not communicate, disclose or make available any information relating to the business of the Bank or the affairs of its customers to any person who is not legally entitled to receive the information and I will not permit it to be communicated, disclosed or made available to such a person.
I also solemnly swear (or affirm) that, except as authorized by law, I will not allow any person to inspect or have access to any books or documents that belong to, or are in the possession of, the Bank and that relate to the business of the Bank or the affairs of its customers.