Modernizing the Credit Unions and Caisses Populaires Act

PART I
INTERPRETATION

Definitions

      1.  In this Act,

"affiliate" means an affiliated body corporate within the meaning of section 5; ("membre du même groupe")

"articles of incorporation" or "articles" means the original or restated articles of incorporation, articles of amalgamation, articles of amendment, memorandum of association, a special Act or other instrument by which a credit union is incorporated and includes any amendment thereto; ("statuts constitutifs" ou "statuts")

"association of credit unions" means a body corporate incorporated by ten or more credit unions to act as their stabilization authority; ("association de caisses")   Repeal

"auditor" means a person who is a public accountant licensed under the Public Accounting Act, 2004 and includes a partnership of auditors or a firm of accountants; ("vérificateur")

"board" means, with respect to a credit union, its board of directors; ("conseil")

"body corporate" means any body corporate with or without share capital and whether or not it is a corporation to which this Act applies; ("personne morale")

"borrow" does not include the taking of deposits; ("emprunter")

"by-law" Repeal

"Commission" Repeal

"Corporation" means the Deposit Insurance Corporation of Ontario; ("Société")

"court", except where the context indicates otherwise, means the Superior Court of Justice; ("tribunal")

"credit union" means a corporation incorporated or continued as a credit union or caisse populaire under this Act or a predecessor of this Act; ("caisse", "caisse populaire")

"debt obligation" means a bond, debenture, note or other evidence of indebtedness of an entity, whether secured or unsecured; ("titre de créance")

"deposit" includes money deposited in with a credit union under a federal or provincial registered savings plan or fund; ("dépôt")

"deposit insurer" Repeal

"depositor" means a person with funds on deposit with a credit union; ("déposant")

"entity" means a body corporate, trust, partnership, fund, an unincorporated organization, Her Majesty in right of Canada or of a province, an agency of Her Majesty in either of such rights and the government of a foreign country or any political subdivision thereof and any agency thereof; ("entité")

"financial institution" means,

         (a)    a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada),

         (b)    an insurer licensed under the Insurance Act,

         (c)    a corporation registered under the Loan and Trust Corporations Act,

         (d)    an entity that is,

                        (i)    incorporated or formed by or under an Act of the Parliament of Canada or of the legislature of a province, and

                       (ii)    primarily engaged in dealing in securities, including portfolio management and investment counselling,

         (e)    a credit union, and

          (f)    a league;, and ("institution financière")

          (g)   such other entities or classes of entities as may be prescribed; (“institution financière”)

"financial statement" means a financial statement referred to in subsection 212 (4); ("état financier")

"firm of accountants" means,

         (a)    a partnership, the members of which are accountants engaged in the practice of accounting, or

         (b)    a body corporate that is incorporated by or under an Act of the legislature of a province and engaged in the practice of accounting; ("cabinet de comptables")

"incorporator" means an individual who signs articles of incorporation; ("fondateur")

"league" means a corporation incorporated as a credit union league or federation under this Act or a predecessor of this Act; ("fédération")

"member" means a person who is a member or enrolled as a member of a credit union under this Act, the articles and the by-laws of the credit union governing membership; ("sociétaire")

"membership share" means an interest in the equity of a credit union that confers the rights referred to in subsection 52 (1); ("part sociale")

"Minister" means the Minister of Finance; ("ministre")

"officer", in respect of a credit union, means,

         (a)   the chair of the board required under section 94.1,

         (b)   the corporate secretary required under subsection 140 (1),

         (c)   the chief executive officer required under subsection 140 (1), and

         (d)   any other officer provided for in the by-laws referred to in subsection 140 (1); "patronage share" means a share of a class provided for by the articles of a credit union in accordance with section 52.1;

"personal representative" means a person who stands in place of and represents another person and includes, as the circumstances require, a trustee, an executor, an administrator, a committee, a guardian, a tutor, a curator, an assignee, a receiver, an agent or an attorney of any person, but does not include a delegate; ("représentant personnel")

"prescribed" means prescribed by the regulations; ("prescrit")

"real estate" Repeal

"regulations" means the regulations made under this Act; ("règlement")

"regulatory capital" in respect of a credit union, has the meaning given to that expression by the regulations; ("capital réglementaire")

"related person", when used to indicate a relationship with any person, means,

         (a)    a spouse of the person,

         (b)    any son or daughter of the person, or

         (c)    any relative of the person or of any person mentioned in clause (a) or (b); ("personne liée")

"relative" means a relative by blood, marriage or adoption; ("parent")

"security" means a security as defined under the Securities Act but does not include a deposit with a financial institution or any instrument evidencing the deposit; ("valeur mobilière")

"share" includes a membership share unless specifically excluded by this Act; ("action")

"shareholder" means a shareholder as defined in subsection 8 (1); ("actionnaire")

"special resolution" means a resolution passed by two-thirds or more of the votes cast by or on behalf of the persons who voted in respect of that resolution; ("résolution extraordinaire")

"spouse" means a spouse as defined under Part III of the Family Law Act; ("conjoint")

"stabilization authority" Repeal

"subordinated indebtedness" means an instrument evidencing an indebtedness of a credit union that, by its terms, provides that the indebtedness will, in the event of the insolvency or winding up of the credit union, be subordinate in right of payment to all deposit liabilities of the credit union and all other liabilities of the credit union except those that, by their terms, rank equally with or are subordinate to the indebtedness; ("titre secondaire")

"Superintendent" means the Superintendent of Financial Services appointed under the Financial Services Commission of Ontario Act, 1997; ("surintendant")

"Tribunal" means the Financial Services Tribunal established under the Financial Services Commission of Ontario Act, 1997. ("Tribunal")  1994, c. 11, s. 1; 1997, c. 28, s. 52; 1999, c. 6, s. 19 (1, 2); 2002, c. 18, Sched. H, s. 3 (1); 2004; c. 8, ss. 46, 47 (1); 2005, c. 5, s. 18 (1, 2); 2006, c. 19, Sched. C, s. 1 (1).

Joint shareholders

      2. (1) For the purposes of this Act, two or more persons holding the same share or shares jointly are considered as one member or shareholder.

Exception

      (2) Despite subsection (1), two or more persons jointly holding enough membership shares to entitle each of them to be a member in his or her their own right are all considered as separate members.  1994, c. 11, s. 2.

Subsidiary

      3. For the purposes of this Act, a body corporate is a subsidiary of another body corporate if,

         (a)    it is controlled by,

                        (i)    that other,

                       (ii)    that other and one or more bodies corporate each of which is controlled by that other, or

                     (iii)    two or more bodies corporate that are that other's subsidiary; or

         (b)    it is a subsidiary of a body corporate that is that other's subsidiary.  1994, c. 11, s. 3.

Holding body corporate

      4. For the purposes of this Act, a body corporate is another's holding body corporate if that other is its subsidiary.  1994, c. 11, s. 4.

Affiliation

      5. (1) For the purposes of this Act, one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person.  1994, c. 11, s. 5 (1).

Affiliate by order

      (2) On application in writing by a credit union, the Superintendent Corporation may, by order and on the terms specified in the order, deem a corporate body named in the order to be an affiliate for the purposes of this Act or for the purpose of specific provisions of this Act.  1994, c. 11, s. 5 (2); 1997, c. 28, s. 53.

Revocation of order

      (3) The Corporation may, by order, revoke an order under subsection (2) if the Corporation believes that the credit union has failed to comply with a term set out in the order under subsection (2) or that it is no longer appropriate to deem the corporate body in respect of which the order under subsection (2) was made to be an affiliate.

Procedural rules

      (4) Section 240.1 applies with respect to an order under this section.

 

Controlling body corporate

      6. For the purposes of this Act, a body corporate is controlled by another person or by two or more bodies corporate if,

         (a)    voting securities of the first mentioned body corporate carrying more than 50 per cent of the votes for the election of directors are held, other than by way of security only, by or for the benefit of the other person or by or for the benefit of the other bodies corporate; and

         (b)    the votes carried by the securities are sufficient, if exercised, to elect a majority of the board of directors of the first-mentioned body corporate.  1994, c. 11, s. 6.

Member

      7. (1) For the purposes of this Act, a person is a holder of a membership share of a credit union when, according to the membership register of the credit union register under section 230, the person is the owner of the membership share or is entitled to be entered in the members register of the credit union register as the owner of the share.

Holder of membership share

      (2) A reference in this Act to the holding of a membership share by or in the name of a person is a reference to the fact that the person is registered or is entitled to be registered in the members register or a similar record of members of the credit union register under section 230 as the holder of the share.  1994, c. 11, s. 7.

Shareholder

      8. (1) For the purposes of this Act, a person is a shareholder of a body corporate when, according to the securities register of the body corporate, the person is the owner of a share of the body corporate or is entitled to be entered in the securities register or like record of the body corporate as the owner of a share.

Holder of a share

      (2) A reference in this Act to the holding of a share by or in the name of any person is a reference to the fact that the person is registered or is entitled to be registered in the securities register or a similar register of the body corporate as the holder of that share.  1994, c. 11, s. 8.

PART II
ADMINISTRATION

Application of Corporations Act

      9. (1) Repealed:  1997, c. 28, s. 54.

Application of Corporations Act

      (2) Repeal

Delegation of powers by Minister

      10. Repeal

     11. Repealed:  1997, c. 28, s. 55.

PART III
ESTABLISHING A CREDIT UNION

Incorporation

Corporate charter

      12. (1) The certificate of incorporation, articles of incorporation and the by-laws of a credit union, together with this Act, constitute the charter of the credit union.

Date of incorporation

      (2) A credit union comes into existence on the date set out in the certificate of incorporation.  1994, c. 11, s. 12.

Articles of incorporation

      13. (1) Twenty or more individuals may incorporate a credit union by signing articles of incorporation and complying with section 15.

Restriction

      (2) An individual is disqualified from being an incorporator if he or she,

         (a)    is less than eighteen years of age;

         (b)    is of unsound mind and has been so found by a court in Canada or elsewhere; or

         (c)    is an undischarged bankrupt or has been discharged as a bankrupt in the five years preceding the date the application to incorporate the credit union is made under subsection 15 (1).

Contents of articles

      14. (1) The articles of incorporation must set out the prescribed information.

Same

      (2) The articles may include any provision that is permitted under this Act to be set out in the articles or that could be the subject of a by-law of the credit union.

Same

      (3) The articles must set out any restrictions on the business that the credit union may carry on or on the powers that the credit union may exercise.

First directors

      (4) The articles must name at least five individuals who hold office as first directors of the credit union.

Affidavit

      (5) An affidavit verifying the following matters must accompany the articles:

           1.    The signature of each incorporator and each first director.

           2.    The fact that each incorporator and first director meet the criteria for eligibility under subsection 13 (2) and section 91, as applicable, and that each first director is not disqualified to be a director under section 92.

Where consent required

      (6) If a person who is not an incorporator is named in the articles as a first director, his or her consent to act as a first director must accompany the articles.  1994, c. 11, s. 14 (2-6).

Form of consent

      (7) Repeal

Application for incorporation

      15. (1) An application to incorporate a credit union may be made by sending to the Minister the Superintendent two copies of the proposed articles of incorporation and the proposed by-laws of the credit union and paying the applicable application fee established by the Minister.  1994, c. 11, s. 15 (1).

Inquiry before incorporation

      (2) The Superintendent shall inquire into the circumstances, sufficiency and regularity of the articles and by-laws and may do any of the following before issuing a certificate of incorporation:

           1.    Require the incorporators to provide such additional information as the Superintendent considers relevant to the application.

           2.    Require any matter set out in the articles or by-laws or in the additional information provided to the Superintendent to be verified under oath.

           3.    Require the articles or by-laws to be amended if the Superintendent considers that they are inconsistent with this Act or the regulations.  1994, c. 11, s. 15 (2); 1997, c. 28, s. 53.

Certificate of incorporation

      16. (1) Subject to subsection (2), the Minister The Superintendent shall issue a certificate of incorporation to the incorporators.

Grounds for refusing certificate

      (2) The Minister The Superintendent shall not issue a certificate of incorporation if the articles do not meet the requirements of section 14 or 15 or if the incorporators do not satisfy the Minister The Superintendent of the following matters:

           1.    The plans for the conduct and development of the business of the credit union are feasible and sound.

           2.    The credit union will be operated in accordance with co-operative principles.

           3.    The credit union will be operated in such a way that deposits will be safeguarded without the likelihood of a claim against the deposit insurer the Corporation.

           4.    The credit union will be operated responsibly by individuals who, by virtue of their character, competence and experience, are suited to operating a financial institution.

           5.    The incorporation of the credit union will serve the best interests of the co-operative financial system in Ontario.  1994, c. 11, s. 16.

Effect of certificate

      17. (1) A certificate of incorporation is conclusive proof that the incorporators have complied with all conditions precedent to incorporating a credit union and that the credit union was incorporated under this Act on the date set out in the certificate.

Exception

      (2) Subsection (1) does not apply in a proceeding under section 301.  1994, c. 11, s. 17.

Appeal re refusal of certificate

      18. If the Minister the Superintendent decides, after giving the applicants for incorporation an opportunity to be heard make written submissions, not to issue a certificate of incorporation, he or she shall notify the incorporators, in writing, and set out the reasons for the decision.  1994, c. 11, s. 18.

Language and form of name corporate name

      19. (1) The name corporate name of a credit union must be in the language and form authorized in the articles and approved by the Superintendent.  1994, c. 11, s. 19 (1); 1997, c. 28, s. 53; 1999, c. 12, Sched. I, s. 2 (1).

Use of "credit union"

      (2) Subject to subsections (3) and (5), the name corporate name of a credit union must include the words "credit union" or "caisse populaire".

Use of "caisse populaire"

      (3) Only a corporation incorporated under this Act or a predecessor of this Act that provides financial services to its members and promotes the interests of the French-speaking community in Ontario by providing management and democratic control in French may include "caisse populaire" in its name corporate name and all other corporations incorporated under this Act or a predecessor of this Act shall include "credit union" in their names corporate names .

Use of "Limited", etc.

      (4) The name corporate name of a credit union must have at the end of it one of the following: "Limited", "Ltd", "Limitée", "Ltée", "incorporated", "incorporée" or "Inc".

Exception

      (5) Subject to subsection (3), a credit union incorporated under a predecessor of this Act may continue to use the name under which it was incorporated as its corporate name.  1994, c. 11, s. 19 (2-5).

Use other name

      19.1 (1) A credit union shall not carry on business under or identify itself by a name other than its corporate name unless the Superintendent has approved that name.

Restriction on approval

      (2) The Superintendent shall not approve a name under subsection (1) if the name includes "credit union" or "caisse populaire" or if the name would be precluded as a corporate name under section 21.

Corporate name to be used in all documents

      (3) A credit union shall set out its corporate name in legible characters in all documents that evidence rights or obligations with respect to other parties (including contracts, invoices and negotiable instruments) and that are issued or made by or on behalf of the credit union.  1999, c. 12, Sched. I, s. 2 (2).

Prohibition, use of "credit union", "caisse populaire"

      20. (1) No person, other than a credit union or prescribed person or entity, shall carry on business using a name in which "credit union" or "caisse populaire" is used.

Exception

      (2) Subsection (1) does not apply to the prescribed persons or entities.  1994, c. 11, s. 20 (2).

Restrictions re name corporate names

      21. (1) A credit union may not be incorporated under this Act with a name corporate name that,

         (a)    is prohibited under an Act of the Parliament of Canada or a province or territory of Canada;

         (b)    does not meet the prescribed requirements;

         (c)    is reserved under section 22 for another credit union;

         (d)    is the same as or confusingly similar to any existing trade-mark or trade name or corporate name of a body corporate;

         (e)    is the same as or confusingly similar to the known name under or by which another entity carries on business or is identified;

          (f)    contains a word or phrase that indicates or suggests that it is incorporated for any object other than one set out in its articles; or

         (g)    is deceptively misdescriptive.  1994, c. 11, s. 21 (1).

Exception re trade-marks, etc.

      (2) Clause (1) (d) does not apply if the Superintendent is satisfied that,

         (a)    the trade-mark or trade name is being changed or the body corporate is being dissolved or is changing its corporate name; and

         (b)    in the case of a corporate name, there is consent to the use of the corporate name.  1994, c. 11, s. 21 (2); 1997, c. 28, s. 53.

Exception for affiliates

      (3) Clauses (1) (d) and (e) do not apply with respect to a credit union that is affiliated with another entity if the Superintendent is satisfied that the entity consents to it having a name corporate names substantially similar to the entity's name.  1994, c. 11, s. 21 (3); 1997, c. 28, s. 53.

Change of name corporate names

      (4) If a credit union has acquired a name corporate names contrary to subsection (1), the Superintendent may, by order, issue a certificate of amendment to the articles changing the name of the credit union.  1994, c. 11, s. 21 (4); 1997, c. 28, s. 53.

Procedural rules

      (5) Section 240.1 applies with respect to an order under subsection (4).

Reserving a corporate name

      22. (1) A person may reserve a corporate name for a period of up to 90 days by making an application to the Superintendent and paying the fee established by the Minister.

Effect of reservation

      (2) During the period that the name is reserved, a body corporate is not entitled to acquire the name corporate name or a similar name without the prior written consent of the person for whose use and benefit the name is reserved.  1994, c. 11, s. 22 (2).

Renewal of reservation of corporate name

      (3) Within 30 days before the expiry of the reservation of a corporate name under subsection (1), the person who reserved the name may apply for a renewal of the reservation for a further period of not more than 90 days by submitting an application for the renewal to the Superintendent and paying the fee established by the Minister.

Corporate seal

      22. (1) A credit union may, but need not, have a corporate seal.

Location of head office

      23. (1) A credit union shall have its head office in Ontario at the place indicated in its articles.

Change

      (2) A credit union may by articles of amendment change the location of its head office to another place in Ontario.  1994, c. 11, s. 23.

Objects and Powers

Objects

      24. (1) The object of a credit union is to provide on a co-operative basis financial services primarily for its members.

Co-operative basis

      (2) A credit union shall operate on a co-operative basis such that,

         (a)    membership is voluntary and is open to those that fall within its bond of association;

         (b)    its business is carried on primarily for the benefit of its members;

         (c)    the net income that accrues from its business is,

                        (i)    used to provide services for its members,

                       (ii)    used to develop its business,

                     (iii)    used to increase its reserves or retained earnings,

                      (iv)    distributed to its members and shareholders, or

                       (v)    used for another purpose approved by the members; and

         (d)    each member has only one vote at its general meetings or in respect of elections of its directors and officers.

Exception

      (3) Clause (2) (d) does not prevent a member from voting as a proxy holder as allowed under section 217.3.

Powers

      25. (1) A credit union has the capacity of a natural person and, subject to this Act, the rights, powers and privileges of a natural person.

Powers outside Ontario

      (2) A credit union may exercise its powers outside of Ontario to the extent permitted under the laws of the applicable jurisdiction.

Extra-provincial powers

      (3) A credit union may accept extra-provincial powers and rights.  1994, c. 11, s. 25.

Acting outside powers

      26. (1) No act of a credit union and no transfer of real or personal property to or by a credit union before or after this section comes into force, that is otherwise lawful, is invalid because the credit union was without capacity or power to do the act or make or receive the transfer, but a lack of capacity or power may be asserted,

         (a)    in a proceeding against the credit union by a member under subsection (2);

         (b)    in a proceeding by the credit union, whether acting directly or through a receiver, liquidator, trustee or their legal representative or through members in a representative capacity, against a director or officer or former director or officer of the credit union; or

         (c)    as a cause for the cancellation of the certificate of incorporation of the credit union.

Restraining order

      (2) A member of a credit union may apply to court for an order restraining the credit union from doing any act on the ground that the credit union lacks capacity to do so.

Granting order

      (3) Subject to subsection (4), the court may, if it considers it to be just and equitable, grant the order.

Where contract

      (4) If the act or transfer that the member seeks to restrain is to be done under a contract to which the credit union is a party,

         (a)    all the parties to the contract are parties to the proceedings;

         (b)    the court may,

                        (i)    grant the order and set aside the contract, and

                       (ii)    award compensation to the credit union or other parties to the contract for any damages or loss, other than anticipated profits from the contract, sustained by them because the order is granted and the contract is set aside.  1994, c. 11, s. 26.

Miscellaneous

Indoor management rule

      27. (1) A credit union or a guarantor of an obligation of one shall not assert against a person dealing with the credit union or with a person who has acquired rights from the credit union any of the following matters:

           1.    The articles or by-laws have not been complied with.

           2.    The individuals named in the most recent notice filed under the Corporations Information Act or named in the articles, whichever is more current, are not the directors of the credit union.

           3.    The location of its head office indicated in a notice filed under the Corporations Information Act, as named in the by-laws, or named in the articles, whichever is more current, is not the head office of the credit union.

           4.    A person held out by the credit union as a director, officer or agent has not been duly appointed or does not have authority to exercise the powers and perform the duties that are customary in the business of the credit union or usual for the director, officer or agent.

           5.    A document issued by a director, officer or agent of the credit union with actual or usual authority to issue the document is not valid or not genuine.

           6.    Financial assistance was not authorized.

           7.    The sale, lease, exchange or disposition of property of the credit union was not authorized under section 204.

Exception

      (2) Subsection (1) does not apply if the person has or ought to have knowledge of the matter by virtue of his, her or its position with or relationship to the credit union.  1994, c. 11, s. 27 (1, 2).

No deemed notice

      (3) No person is affected by or is deemed to have knowledge of the contents of a document concerning a credit union by reason only that the document has been filed with the Superintendent or is available for inspection at an office of the credit union.  1994, c. 11, s. 27 (3); 1997, c. 28, s. 53

Financial years

      27.1 (1) No person is affected by or is deemed to have knowledge of the contents of a document concerning a credit union by reason only that the document has been filed with the Superintendent or is available for inspection at an office of the credit union.  1994, c. 11, s. 27 (3); 1997, c. 28, s. 53

Existing financial years with different year ends

      (1) No person is affected by or is deemed to have knowledge of the contents of a document concerning a credit union by reason only that the document has been filed with the Superintendent or is available for inspection at an office of the credit union.  1994, c. 11, s. 27 (3); 1997, c. 28, s. 53

      (1) The credit union's financial year need not be changed.

      (2) If the credit union's financial year is changed, it must be changed so that it ends on December 31

Special rule not to apply to amalgamated credit unions

     (3) Subsection (2) does not apply to a credit union formed by the amalgamation of two or more credit unions after the day this section comes into force; in such a case the financial year of the amalgamated credit union must end on December 31.

Corporations Act not to apply

     27.2 The Corporations Act does not apply to credit unions.

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