Canada Foundation for Sustainable Development Technology Act

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Sections246

• 1Short title

  This Act may be cited as the Canada Foundation for Sustainable Development Technology Act.

• 2Definitions

  The definitions in this section apply in this Act.

• 2[p2]

  board means the board of directors of the Foundation. (conseil)

• 2[p3]

  Chairperson means the Chairperson of the board appointed under paragraph 9(2)(a). (président)

• 2[p4]

  corporation means the corporation described in the order made under subsection 35(1). (société)

• 2[p5]

  director means a person who is on the board and includes the Chairperson. (administrateur)

• 2[p6]

  eligible project means a project carried on, or to be carried on, primarily in Canada by an eligible recipient to develop and demonstrate new technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil. (travaux admissibles)

• 2[p7]

  eligible recipient means an entity that

• 2[p7](a)

  is established in Canada and carries on or, in the opinion of the board, is capable of carrying on eligible projects;

• 2[p7](b)

  meets the criteria of eligibility established in any agreement entered into between Her Majesty in right of Canada and the Foundation for provision of funding by Her Majesty to the Foundation; and

• 2[p7](c)

  has legal capacity or is composed of organizations, each of which has legal capacity. (bénéficiaire admissible)

• 2[p11]

  employee or agent of Her Majesty in right of a province does not include an employee or agent of Her Majesty in right of a province whose duties and functions in that capacity are restricted to work in a university, college or other educational institution. (fonctionnaire ou mandataire de Sa Majesté du chef d’une province)

• 2[p12]

  Foundation means the Canada Foundation for Sustainable Development Technology referred to in section 3. (Fondation)

• 2[p13]

  member means a person who is a member of the Foundation. (membre)

• 2[p14]

  Minister means the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the purposes of this Act. (ministre)

• 2[p15]

  not-for-profit organization means a corporation, society, association, university, research institute, organization or body no part of whose income is payable to or otherwise available for the personal benefit of any of its proprietors, members or shareholders. (organisation sans but lucratif)

• 2[p16]

  special resolution means a resolution of the members passed by a majority of not less than two thirds of the votes cast by the members who voted on the resolution at a meeting of members or signed by all the members entitled to vote on the resolution. (résolution extraordinaire)

• 2[p17]

  sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs. (développement durable)

• 3Continuation
• 3(1)

  The corporation is continued as a corporation without share capital, to be called the Canada Foundation for Sustainable Development Technology, consisting of the Foundation’s members and directors.

• 3(2)Powers, duties and functions

  If under any Act of Parliament, any instrument made under an Act of Parliament or any contract, licence or other document, a power, duty or function is vested in or exercisable by the corporation, the power, duty or function is vested in or exercisable by the Foundation.

• 3(3)References

  Every reference to the corporation in any deed, contract, agreement or other document executed by the corporation shall, unless the context otherwise requires, be read as a reference to the Foundation.

• 3(4)Rights and obligations

  All rights and property of the corporation and all obligations of the corporation are transferred to the Foundation.

• 3(5)Commencement of legal proceedings

  Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the corporation may be brought against the Foundation in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the corporation.

• 3(6)Continuation of legal proceedings

  Any action, suit or other legal proceeding to which the corporation is party pending in any court immediately before the day on which this section comes into force may be continued by or against the Foundation in like manner and to the same extent as it could have been continued by or against the corporation.

• 3(7)By-laws

  Every by-law of the corporation is, to the extent that it is not inconsistent with this Act, a by-law of the Foundation.

• 3(8)Officers and employees

  Nothing in this Act affects the status of any person who, immediately before the day on which this section comes into force, was an officer or employee of the corporation except that, as of that day, the person is an officer or employee, as the case may be, of the Foundation.

• 4Foundation not agent of Her Majesty

  The Foundation is not an agent of Her Majesty.

• 5Objects and purposes of Foundation

  The objects and purposes of the Foundation are to provide funding to eligible recipients for eligible projects.

• 6Capacity

  For the purposes of carrying out its objects and purposes, the Foundation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.

• 7Head office

  The head office of the Foundation shall be in a place in Canada designated by the Governor in Council.

• 8Canada Business Corporations Act
• 8(1)

  The following provisions of the Canada Business Corporations Act apply, with any modifications that the circumstances require, to the Foundation and its directors, members, officers and employees as if the Foundation were a corporation incorporated under that Act, this Act were its articles of incorporation and its members were its shareholders:

• 8(1)(a)

  section 16 (by-law not required to confer powers on Foundation, restriction on powers of Foundation and validity of acts of Foundation);

• 8(1)(b)

  subsection 21(1) (access to Foundation’s records by members and creditors);

• 8(1)(c)

  section 23 (corporate seal not needed to validate instrument);

• 8(1)(d)

  subsections 103(1) to (4) (powers of directors to make and amend by-laws, members’ approval of by-laws and effective date of by-laws);

• 8(1)(e)

  subsection 105(1) (qualifications of directors);

• 8(1)(f)

  subsection 108(2) (resignation of director);

• 8(1)(g)

  section 110 (right of director to attend members’ meetings and statements by retiring directors);

• 8(1)(h)

  subsections 114(1) and (2) (place of directors’ meetings and quorum);

• 8(1)(i)

  section 116 (validity of acts of directors and officers);

• 8(1)(j)

  section 117 (validity of directors’ resolutions not passed at meeting);

• 8(1)(k)

  section 120 (conflict of interest of directors);

• 8(1)(l)

  subsection 122(1) (duty of care of directors and officers);

• 8(1)(m)

  section 123 (directors’ dissents);

• 8(1)(n)

  subsections 124(1) to (4) (indemnification of directors and insurance for directors’ liability);

• 8(1)(o)

  paragraph 133(b) (special meetings of members);

• 8(1)(p)

  section 155 (financial statements);

• 8(1)(q)

  section 158 (approval of financial statements by directors);

• 8(1)(r)

  section 159 (sending financial statements to members before annual meeting and penalty for failure);

• 8(1)(s)

  section 161 (qualifications of auditor);

• 8(1)(t)

  section 168 (rights and duties of auditor);

• 8(1)(u)

  section 169 (examination by auditor);

• 8(1)(v)

  section 170 (right of auditor to information);

• 8(1)(w)

  subsections 171(3) to (9) (duty and administration of audit committee and penalty for failure to comply);

• 8(1)(x)

  section 172 (qualified privilege in defamation for auditor’s statements); and

• 8(1)(y)

  subsections 257(1) and (2) (certificates of Foundation as evidence).

• 8(2)Description with cross-references

  The descriptive words in parentheses that follow a reference to a provision of the Canada Business Corporations Act in subsection (1) form no part of that subsection but are inserted for convenience of reference only.

• 8(3)Canada Not-for-profit Corporations Act

  The Canada Not-for-profit Corporations Act does not apply to the Foundation.

• 9Continuation of board of directors of corporation
• 9(1)

  The board of directors of the corporation ceases to exist and there shall be a board of directors of the Foundation that shall supervise the management of the business and affairs of the Foundation and, subject to the by-laws of the Foundation, exercise all its powers.

• 9(2)Appointment of directors

  Subject to subsection (4), the board consists of

• 9(2)(a)

  the Chairperson of the board appointed by the Governor in Council on the Minister’s recommendation;

• 9(2)(b)

  six persons appointed by the Governor in Council on the Minister’s recommendation; and

• 9(2)(c)

  eight persons appointed by the members in accordance with subsection 13(5) and the by-laws of the Foundation.

• 9(3)Eligibility for directors

  A person is not eligible to be appointed as a director if the person

• 9(3)(a)

  is a member of the Senate, the House of Commons or the legislature of a province;

• 9(3)(b)

  is an employee or agent of Her Majesty in right of Canada or in right of a province;

• 9(3)(c)

  does not ordinarily reside in Canada; or

• 9(3)(d)

  is disqualified under subsection 105(1) of the Canada Business Corporations Act.

• 9(4)Initial organization

  If the Chairperson is appointed before directors have been appointed under paragraph (2)(c), the Chairperson and any other directors that may have been appointed under paragraph (2)(b) constitute the board until directors are appointed under paragraph (2)(c) and may

• 9(4)(a)

  undertake the organization of the Foundation including the appointment of officers and employees;

• 9(4)(b)

  make banking arrangements for the Foundation;

• 9(4)(c)

  enact organizational by-laws for the Foundation; and

• 9(4)(d)

  receive on behalf of the Foundation any moneys paid to the Foundation.

• 9(5)Limitation

  Until directors are appointed under paragraph (2)(c), the Foundation shall not provide any funding from the funds of the Foundation or enter into any agreements or arrangements, or review any applications, for or in respect of funding to be provided from the funds of the Foundation.

• 9(6)Foundation not owned by Crown

  The operation of the Foundation under subsection (4) by the Chairperson and any directors appointed under paragraph (2)(b) shall not, despite subsection 83(2) of the Financial Administration Act, result in the Foundation being considered, for the purposes of Part X of that Act or for any other purpose, to be wholly owned directly by Her Majesty in right of Canada.

• 10Terms of office of directors
• 10(1)

  Subject to subsections (2) and (3), the Chairperson and the directors shall be appointed to hold office during good behaviour for terms not exceeding five years.

• 10(2)Removal from office

  The Chairperson and any director appointed under paragraph 9(2)(b) may be removed for cause by the Governor in Council. Any director appointed under paragraph 9(2)(c) may be removed for cause by a special resolution.

• 10(3)Continuation in office

  Except where they cease to be directors under subsection (6), directors shall continue to hold office until their successors are appointed.

• 10(4)Additional terms of office

  A director is eligible to be reappointed for one or more terms not exceeding five years each.

• 10(5)Term of replacements

  A person appointed to fill a vacancy in the office of a director who has ceased to hold office before the expiry of the director’s term of office shall be appointed to hold office for the unexpired portion of that term.

• 10(6)Ceasing to be director

  A director ceases to be a director when the director

• 10(6)(a)

  dies;

• 10(6)(b)

  resigns;

• 10(6)(c)

  is appointed to the Senate;

• 10(6)(d)

  is elected to the House of Commons or to the legislature of a province;

• 10(6)(e)

  becomes an employee or agent of Her Majesty in right of Canada or in right of a province;

• 10(6)(f)

  ceases to be ordinarily resident in Canada;

• 10(6)(g)

  becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or

• 10(6)(h)

  is removed from office under subsection (2).

• 11Director representation and experience

  The appointment of directors shall be made having regard to the following considerations:

• 11(a)

  the need to ensure, as far as possible, that at all times the board will be representative of

• 11(a)(i)

  persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil,

• 11(a)(ii)

  the business community, and

• 11(a)(iii)

  not-for-profit organizations;

• 11(b)

  the importance of having a board that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and

• 11(c)

  the need for a board that has sufficient knowledge of technologies that promote sustainable development.

• 12Remuneration and expenses for directors
• 12(1)

  From the funds of the Foundation, the directors

• 12(1)(a)

  may be paid remuneration that is fixed by the Foundation’s by-laws; and

• 12(1)(b)

  are entitled to be paid reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.

• 12(2)Directors not to profit

  Except as provided under subsection (1), no director shall profit or gain any income or acquire any property from the Foundation or its activities.

• 13Members of the corporation
• 13(1)

  The persons who are members of the corporation cease to be members of the corporation.

• 13(1.1)Appointing of members

  There shall be 15 members of the Foundation.

• 13(2)First members

  The Governor in Council shall without delay appoint seven persons as members of the Foundation, on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry.

• 13(3)First meeting

  As soon as possible after the appointment of the seven members under subsection (2), the Minister shall make arrangements for a first meeting of those members.

• 13(4)Appointing balance of first members

  At the first meeting of the seven members appointed under subsection (2), or at a meeting held as soon after that meeting as possible, those members shall appoint eight further members of the Foundation.

• 13(5)Appointment of first directors under paragraph 9(2)(c)

  The members shall appoint the first directors under paragraph 9(2)(c) at a meeting held as soon as possible after the eight further members are appointed under subsection (4).

• 13(6)Appointment of successor members

  The appointment of a person as a member to succeed a person whose term as a member expires shall be made by the members at a meeting of members.

• 13(7)Filling vacancies

  The appointment of a person as a member to fill a vacancy in the membership caused by a person ceasing to be a member before the member’s term as a member expires shall be made by the members at a meeting of members.

• 13(8)Eligibility for members

  A person is not eligible to be appointed as a member if the person

• 13(8)(a)

  is a member of the Senate, the House of Commons or the legislature of a province;

• 13(8)(b)

  is an employee or agent of Her Majesty in right of Canada or in right of a province;

• 13(8)(c)

  is a director;

• 13(8)(d)

  does not ordinarily reside in Canada; or

• 13(8)(e)

  is disqualified under subsection 105(1) of the Canada Business Corporations Act.

• 14Terms of members
• 14(1)

  Subject to subsections (2) and (3), members shall be appointed to hold office during good behaviour for terms not exceeding five years.

• 14(2)Removal from office

  Any member appointed under subsection 13(2) may be removed for cause by the Governor in Council. Any member appointed under subsection 13(4), (6) or (7) may be removed for cause by a special resolution.

• 14(3)Continuation in office

  Except where they cease to be members under subsection (6), members shall continue to hold office until their successors are appointed.

• 14(4)Additional terms of office

  A member is eligible to be reappointed for one or more terms not exceeding five years each.

• 14(5)Term of Replacements

  A person appointed to fill a vacancy in the office of a member who has ceased to hold the office before the expiry of the member’s term of office shall be appointed to hold office for the unexpired portion of that term.

• 14(6)Ceasing to be member

  A member ceases to be a member when the member

• 14(6)(a)

  dies;

• 14(6)(b)

  resigns;

• 14(6)(c)

  is appointed to the Senate;

• 14(6)(d)

  is elected to the House of Commons or to the legislature of a province;

• 14(6)(e)

  is appointed as a director;

• 14(6)(f)

  becomes an employee or agent of Her Majesty in right of Canada or in right of a province;

• 14(6)(g)

  ceases to be ordinarily resident in Canada;

• 14(6)(h)

  becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or

• 14(6)(i)

  is removed from office under subsection (2).

• 15Member representation and experience

  The appointment of members shall be made having regard to the following considerations:

• 15(a)

  the need to ensure, as far as possible, that at all times the membership will be representative of

• 15(a)(i)

  persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil,

• 15(a)(ii)

  the business community, and

• 15(a)(iii)

  not-for-profit organizations;

• 15(b)

  the importance of having membership that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and

• 15(c)

  the need for a membership that has sufficient knowledge of technologies that promote sustainable development.

• 16Expenses for members
• 16(1)

  Members shall serve without remuneration but are entitled to be paid from the funds of the Foundation reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.

• 16(2)Members not to profit

  Except as provided under subsection (1), no member shall profit or gain any income or acquire any property from the Foundation or its activities.

• 17Staff
• 17(1)

  The board may appoint any officers, employees and agents of the Foundation that it considers necessary to carry out the objects and purposes of the Foundation.

• 17(2)Designation of offices

  Subject to the by-laws of the Foundation, the board may designate the offices of the Foundation and specify the duties and functions of each office.

• 17(3)Directors and members not employees or agents

  Directors and members are not eligible to be employees or agents of the Foundation.

• 17(4)Not part of public service of Canada

  The directors, members, officers, employees and agents of the Foundation are not, because of being directors, members, officers, employees or agents of the Foundation, part of the federal public administration.

• 18Administrative expenses

  From its funds, the Foundation may pay salaries and wages of its officers and employees, rent for its accommodation, remuneration for its directors and agents, reimbursement to the directors and members for reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence, and other costs and expenses of carrying on the business of the Foundation.

• 19Funding for eligible projects
• 19(1)

  From its funds, the Foundation may provide funding to eligible recipients to be used by them solely for the purposes of eligible projects in accordance with any terms and conditions specified by the Foundation in respect of the funding, including terms and conditions as to repayment of the funding, intellectual property rights and the maximum amount and proportion of funding for eligible projects to be provided by the Foundation.

• 19(2)Agreement with eligible recipient

  The Foundation shall enter into an agreement with an eligible recipient respecting, among other things,

• 19(2)(a)

  the manner in which the Foundation will make advances in respect of funding to the eligible recipient and when those advances will be made;

• 19(2)(b)

  any terms or conditions on which the funding will be provided, including those terms and conditions referred to in subsection (1);

• 19(2)(c)

  the evaluation of the eligible recipient’s performance in achieving the objectives of the eligible project and the evaluation of the results of the project, including the potential performance of the technology that is developed and demonstrated by the project; and

• 19(2)(d)

  if the eligible recipient is composed of organizations, each of which has legal capacity, the requirement for those organizations to be jointly and severally or solidarily liable for the obligations of that eligible recipient.

• 19(3)Foundation not to acquire an interest

  In providing funding to an eligible recipient in respect of an eligible project, the Foundation shall not acquire any interest, whether through the acquisition of share capital, a partnership interest or otherwise, in any research infrastructure acquired by the eligible recipient for the project.

• 20Donations to Foundation
• 20(1)

  Subject to subsection (3), the Foundation may accept conditional or unconditional donations of money.

• 20(2)Use of donations

  All money donated to the Foundation, and any income arising from the investment of that money, shall be used by the Foundation in carrying out its objects and purposes in accordance with the terms and conditions of any agreement for provision of funding entered into between a donor and the Foundation.

• 20(3)Conditional donations

  The Foundation shall not accept a donation of money that is made on the condition that the Foundation use the money or any income arising from the investment of the money for any purpose that is not within the objects and purposes of the Foundation.

• 20(4)Exception

  Subsection (3) does not apply if the conditions of a donation of money merely restrict or direct the manner of investing the money until it can be used to provide funding to eligible recipients for eligible projects.

• 21Investment policies

  The board shall establish investment policies, standards and procedures that a reasonably prudent person would apply in respect of a portfolio of investments to avoid undue risk of loss and obtain a reasonable return, having regard to the Foundation’s obligations and anticipated obligations.

• 22Investments
• 22(1)

  Subject to any conditions of a donation restricting the investment of money donated until it can be used to provide funding to eligible recipients for eligible projects, the Foundation shall invest its funds, and reinvest any income from those funds, in accordance with the investment policies, standards and procedures established by the board.

• 22(2)Incorporation of other corporations

  The Foundation shall not cause any corporation to be incorporated or participate in the incorporation of a corporation or become a partner in a partnership.

• 22(3)Control of corporation

  Except for the investment of its funds, the Foundation shall not carry on any business for gain or profit and shall not hold or acquire any interest in any corporation or enterprise.

• 23Borrowing prohibited
• 23(1)

  The Foundation shall not borrow money, issue any debt obligations or securities, give any guarantees to secure a debt or other obligation of another person or mortgage, pledge or otherwise encumber property of the Foundation.

• 23(2)Real property or immovables

  The Foundation shall not purchase or accept a donation of real property or immovables.

• 24Delegation by board
• 24(1)

  Subject to subsection (2), the board may delegate to the Chairperson, a committee of directors or an officer of the Foundation any of the powers or rights of the board.

• 24(2)Restrictions on delegation

  The board shall not delegate any power or right of the board

• 24(2)(a)

  to enact, amend or repeal by-laws;

• 24(2)(b)

  to authorize the provision of funding to eligible recipients for eligible projects;

• 24(2)(c)

  to appoint directors to, or fill vacancies on, a committee of the board;

• 24(2)(d)

  to appoint officers of the Foundation or fix their remuneration;

• 24(2)(e)

  to accept donations;

• 24(2)(f)

  to approve the annual financial statements or reports of the Foundation; or

• 24(2)(g)

  to submit to the members any matter requiring the approval of the members.

• 25Operating and capital budgets
• 25(1)

  The board shall cause an operating budget and a capital budget to be prepared for each fiscal year of the Foundation and shall submit those budgets to the members for consideration at the annual meeting of members.

• 25(2)Books of account

  The board shall cause books of account and other records to be kept and shall establish financial and management controls, information systems and management practices that will ensure that the business and affairs of the Foundation are carried on, and the financial, human and physical resources of the Foundation are managed effectively, efficiently and economically.

• 25(3)Information systems

  The books of account and other records of the Foundation shall be maintained in a way that will ensure that the assets of the Foundation are properly protected and controlled and that its business and affairs are carried on in compliance with this Act and, in particular, in such a way that they will show

• 25(3)(a)

  descriptions and book values of all investments of the Foundation; and

• 25(3)(b)

  the eligible recipients who have received, or are about to receive, funding from the Foundation in respect of eligible projects, the nature and extent of the projects and the amount of the funding.

• 26Auditor
• 26(1)

  At the first meeting of the members, and in any subsequent fiscal year at the annual meeting, the members shall appoint an auditor for the Foundation for the fiscal year and fix, or authorize the board to fix, the auditor’s remuneration.

• 26(2)Qualifications of auditor

  The auditor shall be

• 26(2)(a)

  a natural person who

• 26(2)(a)(i)

  is a member in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province,

• 26(2)(a)(ii)

  has at least five years experience at a senior level in carrying out audits,

• 26(2)(a)(iii)

  is ordinarily resident in Canada, and

• 26(2)(a)(iv)

  is independent of the board, the directors, the members and the officers of the Foundation; or

• 26(2)(b)

  a firm of accountants of which the member or employee jointly designated by the board and the firm to conduct the audit of the books and records of the Foundation on behalf of the firm meets the qualifications set out in paragraph (a).

• 26(3)Continuation of auditor

  If an auditor is not appointed at the annual general meeting in any fiscal year, the auditor for the preceding fiscal year continues in office until a successor is appointed.

• 26(4)Removal of auditor

  The members may by a special resolution remove an auditor from office.