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| This archived statute consolidation is current to November 5, 2001 and includes changes enacted and in force by that date. For the most current information, click here. |
[Updated to May 14, 2001]
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Contents |
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Section |
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Division 3 – Conditions Affecting Acquisition and Holding of Voting Shares |
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1 In this Part:
"authority" means the British Columbia Hydro and Power Authority;
"commission" means the British Columbia Utilities Commission;
"gas" includes natural, manufactured and mixed gas and liquefied petroleum gas;
"gas distribution intermediary" means a company that is designated as, and continues to be, a gas distribution intermediary under section 3 (2);
"gas system" means the gas service owned or operated, or both, by the authority and includes the real and personal property, equipment and facilities used in that service for the production, generation, storage, transmission, sale, delivery or furnishing of gas for the production of light, heat, cold or power to or for the public or any person;
"gas utility" means gas utility as defined in the Gas Utility Act;
"instrument" includes commercial paper, agreement, lease, licence, permit and document;
"intermediary company" means a company that is designated as, and continues to be, an intermediary company under section 3 (2), and includes a gas distribution intermediary;
"special company" means a company designated as a special company under section 24 (1) or (2).
2 Nothing in this Act authorizes the sale of the authority's electrical division, nor any part of the authority's electrical division.
Division 2 – Disposition of Assets and Liabilities
3 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1) the Lieutenant Governor in Council may make regulations as follows:
(a) designating a company incorporated under the Company Act, in which only the government, the authority or both own shares, as an intermediary company or gas distribution intermediary for the purposes of this Act;
(b) revoking a designation referred to in paragraph (a);
(c) conferring on intermediary companies or a particular intermediary company the rights and powers that the authority has under prescribed provisions of the Hydro and Power Authority Act or of another enactment;
(d) imposing on intermediary companies or a particular intermediary company the obligations and duties that the authority has under prescribed provisions of the Hydro and Power Authority Act or of another enactment;
(e) prescribing provisions of the Hydro and Power Authority Act that apply in respect of intermediary companies or of a particular intermediary company;
(f) designating a particular instrument or class of instruments for the purpose of section 11 (1) (d);
(g) designating a particular instrument for the purpose of section 11 (2) (b);
(h) prescribing limitations and conditions for the purposes of regulations made under this section.
(3) An intermediary company is not an agent of the government unless designated as such by an order under subsection (4) and, once designated as an agent of the government, an intermediary company is an agent of the government until that status is revoked by an order under subsection (4).
(4) The Lieutenant Governor in Council may, by order,
(a) if only the government, the authority or both own shares in an intermediary company, designate the intermediary company by name as an agent of the government, or
(b) revoke the government agency status of an intermediary company, however owned, that is named in the order.
(5) Even though one or more persons other than the government or the authority acquire shares in an intermediary company, it does not cease to be an intermediary company unless its designation as one is revoked under subsection (2) (b).
(6) Section 32 of the Hydro and Power Authority Act applies in respect of an intermediary company.
(7) In exercising the power to make regulations under subsection (1) or (2), orders under subsection (4) or orders under section 32 (6) of the Hydro and Power Authority Act in respect of intermediary companies, the Lieutenant Governor in Council may make different regulations or orders for different intermediary companies.
4 (1) The Lieutenant Governor in Council may, for the purposes of effecting transfers under subsection (2), make orders as follows:
(a) specifying or otherwise describing rights, property, assets, obligations and liabilities of the authority;
(b) designating intermediary companies or persons by name;
(c) approving terms and conditions respecting the acquisition and assumption by an intermediary company in which only the government, the authority or both own shares or by another person named under paragraph (b), of the rights, property, assets, obligations and liabilities of the authority that are transferred to the intermediary company or other person under subsection (2);
(d) setting transfer dates.
(2) On the transfer date set by an order under subsection (1),
(a) the rights, property and assets of the authority that are specified or otherwise described in the order are transferred to and vested in the intermediary company or other person named in the order, as the case may be, as the beneficial owner, and
(b) the obligations and liabilities of the authority that are specified or otherwise described in the order
(i) are transferred to and assumed by the intermediary company or other person named in the order, as the case may be,
(ii) become its obligations and liabilities, and
(iii) become enforceable against it as if it had incurred them,
subject to the terms and conditions, if any, approved under subsection (1) (c).
(3) Subsections (1) and (2) do not apply to property of the authority while the property remains charged by way of security for first mortgage bonds issued by the British Columbia Electric Company Limited.
(4) Subject to section 5 (3), on and after the transfer date set in an order under subsection (1), a reference to the authority in any instrument, the rights and obligations under which have, under subsection (2), been transferred to, vested in or assumed by the intermediary company or other person named in the order, as the case may be, is deemed to be a reference to the intermediary company or other person, or to the authority and the intermediary company or other person, as the context requires.
(5) If the authority, by means of a grant, transfers, to an intermediary company or other person that has been designated by name in an order under subsection (1) (b), rights, property, assets, obligations or liabilities that have not been specified or otherwise described in an order under subsection (1), the transfer by grant must be treated for all purposes under this Act as if it were a transfer under subsection (2) of rights, property, assets, obligations or liabilities specified or otherwise described in an order under subsection (1).
5 (1) The Lieutenant Governor in Council may, for the purposes of effecting transfers under subsection (2), make orders as follows:
(a) specifying or otherwise describing rights, property, assets, obligations and liabilities of an intermediary company in which only the government, the authority or both own shares;
(b) designating persons by name;
(c) approving terms and conditions respecting the acquisition and assumption by a person named under paragraph (b) of the rights, property, assets, obligations and liabilities of an intermediary company that are transferred to the person under subsection (2);
(d) setting transfer dates.
(2) On the transfer date set by an order under subsection (1),
(a) the rights, property and assets of the intermediary company that are specified or otherwise described in the order are transferred to and vested in the person named in the order, as the beneficial owner, and
(b) the obligations and liabilities of the intermediary company that are specified or otherwise described in the order
(i) are transferred to and assumed by the person named in the order,
(ii) become that person's obligations and liabilities, and
(iii) become enforceable against that person as if that person had incurred them,
subject to the terms and conditions, if any, approved under subsection (1) (c).
(3) On and after the transfer date set by an order under subsection (1), a reference to the authority or the intermediary company in any instrument, the rights and obligations under which have, under subsection (2), been transferred to, vested in or assumed by the person named in the order, is deemed to be a reference to that named person, or to the intermediary company and that named person, as the context requires.
6 (1) For the purposes of section 156 of the Land Title Act, if land is transferred under section 4 or 5, any land that is separately itemized in an order under section 4 (1) or 5 (1) or in a certificate produced under subsection (2) (d) is deemed to be transferred by a separate instrument.
(2) If land is,
(a) under section 4 (2), transferred to and vested in an intermediary company or other person named in an order under section 4 (1), or
(b) under section 5 (2), transferred to and vested in a person named in an order under section 5 (1),
the registrar,
(c) on application by the transferee, and
(d) on production of a certificate of vesting signed by the minister and describing the land,
must register an indefeasible title to that land in the name of the transferee named in the order and must cancel any existing indefeasible title to the land, or effect registration by way of charge in the name of the transferee named in the order, as the case may be.
(3) A certificate produced under subsection (2) (d) must set out a description of the land that the registrar considers sufficient to identify the land in the register.
(4) Subsections (1) to (3) do not apply to land transferred by means of a grant referred to in section 4 (5).
(5) Despite sections 4 (4) and 5 (3), the registrar is not obliged to register a transfer of an interest in land that is
(a) described in an order under section 4 or 5 unless the requirements of subsection (2) are fulfilled in respect of the registration of that interest, or
(b) described in a grant referred to in section 4 (5) unless the requirements of the Land Title Act are fulfilled in respect of the registration of that interest.
7 On and after the date of any transfer under section 4 or 5, a guarantee given or purported to have been given by the government for notes, bonds, debentures or other securities issued by the authority continues in force and is binding on the government in accordance with its terms.
8 Without limiting section 4 or 5, a transfer under either section of an interest of the authority or of an intermediary company in a statutory right of way under section 218 of the Land Title Act is effective to vest in the transferee the transferred interest in the statutory right of way
(a) whether or not the transferee is a person in whose favour a statutory right of way may be created, as described in section 218 (1) of the Land Title Act, and
(b) despite any prohibition against or restriction on transfer under the terms of the statutory right of way,
and the statutory right of way continues as a statutory right of way under section 218 of the Land Title Act despite any subsequent disposition or transmission of the transferred interest to the successors or assigns of the transferee that is named in the order under section 4 or 5.
9 Without limiting section 4 or 5, a transfer under either section of an interest may be in the nature of
(a) an assignment from the authority or an intermediary company, as the case may be, to the transferee,
(b) an assignment from the authority or an intermediary company, as the case may be, to itself and the transferee with rights of both to use any property that is transferred as may be set out in the order under section 4 or 5, or
(c) a licence from the authority or an intermediary company, as the case may be, to the transferee of all or part of the interest.
10 (1) In this section, "bylaw" and "local government" and "official community plan" have the same meanings as in the Local Government Act, and the definitions of "agricultural land", "farm use" and "reserve" in section 1 of the Agricultural Land Reserve Act apply.
(2) If land or a building or structure is transferred
(a) under section 4 from the authority to an intermediary company or other person named in an order under that section, or
(b) under section 5 from an intermediary company to a person named in an order under that section,
and the use by the authority or the intermediary company of the land, building or structure does not, immediately before the date of transfer, comply with
(c) a bylaw or official community plan, or
(d) a bylaw of the City of Vancouver under sections 565 to 567 of the Vancouver Charter
that would apply to the authority or the intermediary company, as the case may be, if it were not for an exemption under the Hydro and Power Authority Act, then, if the transferred land, building or structure
(e) is in a municipality other than the City of Vancouver, the use may be continued as a non-conforming use under section 911 of the Local Government Act, and
(f) is in the City of Vancouver, the use of the premises comprised by the land, building or structure may be continued as a non-conformity in respect of use or in respect of regulations, as the case may be, under section 568 of the Vancouver Charter.
(3) If land transferred
(a) under section 4 from the authority to an intermediary company or other person named in an order under that section, or
(b) under section 5 from an intermediary company to a person named in an order under that section
is agricultural land that is, immediately before the date of transfer, being used for a purpose, other than farm use, that would be contrary to the Agricultural Land Reserve Act if it were not for an exemption under the Hydro and Power Authority Act, then the use for that purpose may be continued as a non-conforming use, and the restrictions on the use of agricultural land imposed under the Agricultural Land Reserve Act do not apply in respect of the transferred land until the non-conforming use is discontinued for a continuous period of 6 months.
11 (1) Subject to subsection (2), a transfer under section 4 or 5 does not constitute a breach of or a default under
(a) an instrument evidencing an interest in land,
(b) an instrument requiring or permitting the transmission or distribution of gas,
(c) an instrument constituting a grant by the authority of a right to occupy, cross or use land, or
(d) a particular instrument or class of instruments that is designated for the purpose of this paragraph by a regulation under section 3 (2) (f).
(2) Subsection (1) does not apply to
(a) notes, bonds, debentures or other evidence of indebtedness of the authority or of an intermediary company, or
(b) a particular instrument that is designated for the purpose of this paragraph by a regulation under section 3 (2) (g).
(3) If a transfer under section 4 or 5 of an interest of the authority or of an intermediary company is contrary to an express or implied provision of an instrument to which subsection (1) applies, because the provision, in any manner,
(a) prohibits or restricts transfer, with or without the approval, leave or consent of a person having an interest under the instrument, or
(b) requires that notice of the transfer be given to a person having an interest under the instrument,
and the transfer would, but for subsection (1), constitute a breach of or a default under that provision, then, despite subsection (1), a person who has an interest under the instrument and suffers pecuniary loss arising out of the transfer contrary to that provision has a cause of action against the authority to recover that pecuniary loss, but, despite the instrument or any law, the person has no other remedy.
(4) A person may not bring an action under subsection (3) after the expiration of 12 months after the date of the transfer under section 4 or 5 that gives rise to the cause of action.
Division 3 – Gas Distribution Intermediaries
12 A transfer under section 4 to a gas distribution intermediary, any transaction related to that transfer, and any agreement entered into at the time of that transfer by the authority and a gas distribution intermediary
(a) is deemed to be in compliance with the Utilities Commission Act and the Gas Utility Act and to be in the best interests of the public and of the authority, and
(b) must not be reviewed or reconsidered by the commission in exercising any of its rights, powers, obligations, duties and functions, as they relate to the authority or to any of the authority's rights, property and assets, or obligations and liabilities, that are not transferred under section 4.
13 A certificate, order, approval, rule, regulation, endorsement or decision under the Utilities Commission Act or the Gas Utility Act that applies, in respect of the gas system, to the authority or to a gas distribution intermediary, as the case may be, on the date of a transfer under section 4 to a gas distribution intermediary, continues in force and applies to the transferee, in respect of the part of the gas system operated or to be operated by the transferee, until the certificate, order, approval, rule, regulation, endorsement or decision expires or is suspended, cancelled, repealed or amended.
Division 4 – Employee Transfers
14 In this Division, "transferred employee" means an employee who is identified in an order made under section 15 (1) (a).
15 (1) The Lieutenant Governor in Council may, for the purpose of effecting transfers under subsection (2), make orders as follows:
(a) identifying, by name classification or other description, employees of the authority or of an intermediary company to be transferred employees;
(b) naming an intermediary company or other person that has been designated under section 4 (1) (b) or 5 (1) (b) to be the employer to whom a transferred employee is transferred;
(c) setting transfer dates.
(2) On the transfer date set by an order under subsection (1), the transferred employees identified in the order
(a) cease to be employees of the authority or of the intermediary company named in the order, as the case may be, and
(b) become employees of the intermediary company or other person that is named under subsection (1) (b) to be the employer.
(3) A question or difference between an intermediary company or other person that is named under subsection (1) (b) to be the employer and
(a) a transferred employee who is a member of a bargaining unit certified under the Labour Relations Code, or
(b) a trade union certified under the Labour Relations Code,
respecting
(c) the application of the Labour Relations Code, or
(d) the interpretation or application of this Division,
may be referred to the Labour Relations Board in accordance with the procedure set out in the Labour Relations Code and the regulations under it.
(4) The Labour Relations Board may decide the question or difference referred to in subsection (3) in any of the ways and by applying any of the remedies available, in respect of a question or difference, under the Labour Relations Code.
16 The provisions of both B.C. Reg. 45/66 and the British Columbia Hydro and Power Authority Pension Plan established by that regulation that apply to persons who are terminated employees within the meaning of B.C. Reg. 45/66 apply to employees who are identified in an order under section 15 (1) (a).
17 (1) The authority may place employees who are not transferred employees but whose employment is affected by a transfer,
(a) under section 4, of rights, property or assets of the authority, or
(b) under section 15, of employees of the authority
into job vacancies with the authority.
(2) An employee must not suffer a reduction in salary or seniority only because of his or her placement under subsection (1).
(3) If an employee of the authority is transferred under this Division, the employee may, within 12 months of the transfer date set by the applicable order under section 15 (1), apply for job vacancies with the authority and, if hired by the authority, his or her employment with the authority is deemed to have continued uninterrupted.
Division 5 – Share and Security Transactions
18 (1) For the purposes of this Act, the minister may
(a) cause companies to be incorporated under the Company Act, and
(b) authorize the acquisition on behalf of the government of all of the shares in one or more companies, as defined in the Company Act, that the minister specifies.
(2) The subscribers of the memorandum of a company incorporated under subsection (1) (a) are deemed to be holders of the subscriber shares in the company on behalf of the government and, when directed to do so by the minister, must transfer the shares into the name of the Minister of Finance and Corporate Relations to be held on behalf of the government.
(3) Shares in a company acquired pursuant to an authorization under subsection (1) (b) must be registered in the name of the Minister of Finance and Corporate Relations to be held on behalf of the government.
19 (1) A share of the government in an intermediary company must be registered in the name of the Minister of Finance and Corporate Relations to be held on behalf of the government.
(2) All rights exercisable by the government as share owner in an intermediary company are exercisable by the Minister of Finance and Corporate Relations or by his or her proxy or other person acting under the direction of the Minister of Finance and Corporate Relations.
(3) Subject to the approval of the Lieutenant Governor in Council, the Minister of Finance and Corporate Relations may, on terms and conditions he or she considers advisable after consultation with the minister, do any of the following:
(a) purchase or otherwise acquire on behalf of the government, shares, notes, bonds, debentures or other securities issued by an intermediary company or special company;
(b) convert any
(i) government held or authority held shares, notes, bonds, debentures or other securities issued by an intermediary company or special company in which only the government, the authority or both own shares, or
(ii) indebtedness owed to the government or the authority by an intermediary company or special company in which only the government, the authority or both own shares,
into other shares, notes, bonds, debentures or other securities in, or indebtedness of, the intermediary company or special company;
(c) forgive any indebtedness specified in the order, owed to the government or the authority by an intermediary company or special company in which only the government, the authority or both own shares;
(d) on behalf of an intermediary company or special company in which only the government, the authority or both own shares, enter into an agreement to amalgamate, under the Company Act, the intermediary company or special company with another company.
20 (1) The Lieutenant Governor in Council may make orders
(a) specifying amounts for the purposes of subsection (2) (e) or (f) or (3) (c), (d) or (e), or
(b) for the purposes of subsection (4) or (5),
and may make different orders for different transactions.
(2) If the authority receives money
(a) on account of a transfer under section 4,
(b) in payment of indebtedness owed to the authority in consideration for or as a result of a transfer under section 4,
(c) on account of a disposition of shares approved under section 22 (1) (a), or
(d) in payment of indebtedness owed to the authority in consideration for or as a result of a disposition of shares approved under section 22 (1) (a),
the authority must, despite section 27 of the Hydro and Power Authority Act, apply the money it receives
(e) by retention for its own purposes of the amount, if any, specified by the Lieutenant Governor in Council, and
(f) by payment of the balance, if any, into the consolidated revenue fund.
(3) If an intermediary company, in which only the government, the authority or both own shares, receives money
(a) on account of a transfer under section 5, or
(b) in payment of indebtedness owed to the intermediary company in consideration for or as a result of a transfer under section 5,
the intermediary company must apply the money it receives
(c) by retention for its own purposes of the amount, if any, specified by the Lieutenant Governor in Council,
(d) by payment to the authority of the amount, if any, specified by the Lieutenant Governor in Council, and
(e) by payment of the balance, if any, into the consolidated revenue fund.
(4) If, in consideration for or as a result of a transfer under section 4, the transferee becomes indebted to the authority, the authority must, if the Lieutenant Governor in Council so orders, transfer or otherwise set over to the government the authority's interest as creditor under the instrument evidencing the indebtedness or the portion of that interest that is identified in the order.
(5) If, in consideration for or as a result of a transfer from an intermediary company under section 5, the transferee becomes indebted to the intermediary company, the intermediary company must, if the Lieutenant Governor in Council so orders, transfer or otherwise set over to the government, or to the authority, or to both in the proportions specified in the order, the intermediary company's interest as creditor under the instrument evidencing the indebtedness or the portion of that interest that is identified in the order.
(6) The application under subsection (2) or (3) of money received by the authority or an intermediary company, or a disposition under subsection (4) or (5), as the case may be, is deemed to be in the best interests of the authority or the intermediary company, as the case may be.
21 (1) The Lieutenant Governor in Council may make orders specifying
(a) indebtedness of the authority to the government for the purpose of subsection (2),
(b) other indebtedness of the authority for the purpose of subsection (3), and
(c) dates for the purpose of subsections (2) and (3).
(2) If the Lieutenant Governor in Council makes an order under subsection (1) (a), then, on the date specified in the order, the indebtedness of the authority to the government, as specified in the order, is forgiven.
(3) If the Lieutenant Governor in Council makes an order under subsection (1) (b), then, on the date specified in the order, the government and the authority become jointly and severally liable for the indebtedness specified in the order, and the government becomes liable to indemnify the authority against any and all claims of third parties in respect of the indebtedness.
(4) Any part of the indebtedness referred to in subsection (3), in respect of the period on and after the date specified for the purpose of subsection (3), that is paid by the authority to the persons to whom it is owed must be treated as a debt due from the government to the authority.
22 (1) The Lieutenant Governor in Council may make orders as follows:
(a) approving the disposition to a person designated by the Lieutenant Governor in Council in an order under this section of all, or the portion identified in the order, of the shares owned by the government or the authority in a company referred to in section 18 (1) (a) or (b), an intermediary company or a special company designated by the Lieutenant Governor in Council in an order under this section;
(b) on behalf of the government or the authority as share owner, approving an offering to the public of shares in an intermediary company or a special company designated by the Lieutenant Governor in Council in an order under this section;
(c) approving terms and conditions respecting a disposition referred to in paragraph (a) or an offering referred to in paragraph (b).
(2) On an offering to the public of shares in an intermediary company or special company, preference must be given to orders received from residents of British Columbia.
(3) On or before an offering to the public of shares in an intermediary company or special company, if the Lieutenant Governor in Council so orders, shares, not exceeding the number of shares per employee specified by the Lieutenant Governor in Council, may be issued to employees of the intermediary company, special company or the authority at a discount, specified by the Lieutenant Governor in Council, off the issue price.
Division 1 – Definitions and Designation
23 In this Part:
"agent" means,
(a) in respect of the Crown in right of British Columbia, or in right of Canada, or in right of another province, an agent of the Crown in that right, and includes
(i) a municipal or public body empowered to perform a function of government in Canada,
(ii) a corporation empowered to perform a function or duty on behalf of the Crown in that right, or
(iii) a corporation controlled, directly or indirectly, by the Crown in that right,
but does not include a member of the Executive Council or a person performing a function or duty in connection with
(iv) the administration or management of an estate or property of an individual, or
(v) the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuity, pension or similar benefits to an individual or to particular classes of individuals, or of money derived from that fund, and
(b) in respect of the government of a foreign state or a political subdivision of it, a person empowered to perform a function or duty on behalf of the government of the foreign state or political subdivision;
"articles" means the articles of a special company;
"board" means the board of directors of a special company;
"charter" means, in relation to a special company, this Part together with the memorandum and articles of the special company;
"intermediary company" means a company that is designated as, and continues to be, an intermediary company under section 3 (2), and includes a gas distribution intermediary;
"member" means a subscriber of the memorandum of a special company and includes every other person who agrees to become a member and whose name is registered in its register of members or a branch register of members;
"non-resident of British Columbia" means any of the following:
(a) an individual not ordinarily resident in British Columbia;
(b) a corporation having its head office outside British Columbia;
(c) the Crown or its agent in right of a province outside British Columbia, the Crown or its agent in right of Canada, or the government of a foreign state or a political subdivision of it, or an agent of either;
(d) a corporation controlled, directly or indirectly, by non-residents of British Columbia as defined in this section;
(e) a trust
(i) established by a non-resident of British Columbia as defined in this section, other than a trust for the administration of a pension fund for the benefit of individuals, a majority of whom are residents of British Columbia, or
(ii) in which non-residents of British Columbia as defined in this section have more than 50% of the beneficial interest;
(f) a corporation of which the majority of the directors, or persons occupying the position of directors by whatever name called, are non-residents of British Columbia as defined in this section;
(g) a corporation controlled, directly or indirectly, by a trust described in paragraph (e) of this definition;
"non-resident of Canada" means any of the following:
(a) an individual not ordinarily resident in Canada;
(b) a corporation incorporated, formed or otherwise organized elsewhere than in Canada;
(c) the government of a foreign state or a political subdivision of it, or an agent of either;
(d) a corporation controlled, directly or indirectly, by non-residents of Canada as defined in this section;
(e) a trust
(i) established by a non-resident of Canada as defined in this section, other than a trust for the administration of a pension fund for the benefit of individuals, a majority of whom are residents of Canada, or
(ii) in which non-residents of Canada as defined in this section have more than 50% of the beneficial interest;
(f) a corporation of which the majority of the directors, or persons occupying the position of directors by whatever name called, are non-residents of Canada as defined in this section;
(g) a corporation controlled, directly or indirectly, by a trust described in paragraph (e) of this definition;
"person" includes the government of British Columbia, any other government and their respective agents;
"resident of Canada" means a person who is not a non-resident of Canada;
"resident of British Columbia" means a person who is not a non-resident of British Columbia;
"share of a special company" means a share in the authorized share capital of a special company;
"special company" means a company designated as a special company under section 24 (1) or (2);
"voting share" means a share or a class of shares of a special company that carries the right to vote under all circumstances on a resolution electing directors, or a share or class of shares of a special company that carries the right to vote on such a resolution because of the occurrence of a contingency that has occurred and is continuing.
24 (1) The Lieutenant Governor in Council may make regulations as follows:
(a) designating an intermediary company, in which only the government, the authority or both own shares, as a special company, effective on revocation under section 3 (2) (b) of its designation as an intermediary company;
(b) if
(i) the Lieutenant Governor in Council is satisfied that a company as defined in the Company Act intends to acquire or has acquired rights, property and assets of the authority or of an intermediary company to carry on a business formerly carried on by the authority or the intermediary company, and
(ii) all of the shareholders of the acquiring company consent to the designation,
designating the acquiring company as a special company;
(c) if
(i) the Lieutenant Governor in Council is satisfied that a company as defined in the Company Act intends to acquire or has acquired a controlling interest in a company or a partnership interest in a partnership that is carrying on a business formerly carried on by the authority or an intermediary company, and
(ii) all of the shareholders of the acquiring company consent to the designation,
designating the acquiring company as a special company;
(d) if
(i) the Lieutenant Governor in Council is satisfied that a company as defined in the Company Act intends to acquire or has acquired, as part of an arrangement referred to in section 252 (1) of that Act, more than 50% of the voting shares of a special company, and
(ii) the acquiring company requests that it be designated under this paragraph,
designating the acquiring company as a special company;
(e) at any time before the completion of an intended acquisition referred to in paragraph (b), (c) or (d), revoking a designation made under paragraph (b), (c) or (d), as the case may be.
(2) Subject to section 27 (1) (d), on an amalgamation under the Company Act of a special company and another company, the amalgamated company is designated as a special company without the necessity of a designation under subsection (1), and this Part applies.
(3) Except as provided in subsection (1) (e), a designation under this section is irrevocable.
Division 2 – Special Companies: Purpose and Restrictions
25 (1) It is the purpose of a special company, under its charter, to carry on the business of providing safe, economical, efficient and high quality service to the public.
(2) This section does not restrict a special company's power and capacity as a natural person under the Company Act or the business and powers that it may carry on and exercise under its charter.
26 (1) Despite the definition of "agent" in section 23, a special company is not an agent of the government unless designated as such by an order under subsection (2), and, once designated as an agent of the government, a special company is an agent of the government until that status is revoked by an order under subsection (2).
(2) The Lieutenant Governor in Council may, by order,
(a) if only the government, the authority or both own shares in a special company, designate the special company by name as an agent of the government, or
(b) revoke the government agency status of a special company, however owned, that is named in the order.
27 (1) Despite the Company Act or its charter, a special company must not, without first obtaining the approval of the Lieutenant Governor in Council, do any of the following:
(a) apply for continuance in another jurisdiction;
(b) establish or maintain its head office outside British Columbia;
(c) sell, lease or exchange all or substantially all of its property;
(d) amalgamate or merge with another company;
(e) enter into a compromise or arrangement under section 252 of the Company Act;
(f) resolve to be dissolved or wound up voluntarily.
(2) The activities described in subsection (1) are invalid if done without the approval of the Lieutenant Governor in Council.
Division 3 – Conditions Affecting Acquisition and Holding of Voting Shares
28 (1) The total number of voting shares in a special company that may be held by persons who are not citizens or residents of Canada,
(a) whether individually or as part of any group of associated persons, and
(b) whether as members or beneficial owners or partly as members and partly as beneficial owners
must not exceed, in aggregate, 20% of the total number of the issued and outstanding voting shares of the special company.
(2) Subsection (1) does not apply in respect of voting shares held by or on behalf of persons who are designated under subsection (3) for the purpose of this subsection.
(3) The Lieutenant Governor in Council may designate persons by name for the purpose of subsection (2) if the Lieutenant Governor in Council is satisfied that, at the time of the designation, the person is bound under an agreement that the Lieutenant Governor in Council considers protects the public interest respecting the shares, and the person is a person who
(a) in a disposition approved under section 22 (1) (a) has acquired shares in a company that after the acquisition becomes a special company,
(b) holds shares in a company on or pending its amalgamation, merger or consolidation with, or its winding up into a special company, under the Company Act,
(c) acquires or will acquire shares in a special company as a result of an arrangement referred to in section 252 (1) of the Company Act, or
(d) acquires, or has agreed to acquire, all or a part of the shares in a special company from a person who has been designated under paragraph (a), (b) or (c) or under this paragraph.
(4) The Lieutenant Governor in Council, having made a designation under subsection (3) (a), (b), or (c) in relation to a special company, may make one further designation in relation to that special company, under subsection (3) (c), but otherwise must not make any further designations under subsection (3) (a) to (c) in relation to that special company.
29 (1) The total number of voting shares in a special company that may be held by
(a) any one person as a member or beneficial owner or partly as a member and partly as a beneficial owner, or
(b) a group of associated persons, as members or beneficial owners or partly as members and partly as beneficial owners,
must not exceed 10% of the total number of the issued and outstanding voting shares of the special company.
(2) Subsection (1) does not apply in respect of voting shares held by or on behalf of
(a) the government or the authority, or
(b) persons who are designated under subsection (3) for the purpose of this subsection.
(3) The Lieutenant Governor in Council may designate persons by name for the purpose of subsection (2) if the Lieutenant Governor in Council is satisfied that, at the time of the designation, the person is bound under an agreement that the Lieutenant Governor in Council considers protects the public interest respecting the shares, and the person is a person who
(a) in a disposition approved under section 22 (1) (a) has acquired shares in a company that after the acquisition becomes a special company,
(b) holds shares in a company on or pending its amalgamation, merger or consolidation with, or its winding up into a special company, under the Company Act,
(c) acquires or will acquire shares in a special company as a result of an arrangement referred to in section 252 (1) of the Company Act, or
(d) acquires, or has agreed to acquire, all or a part of the shares in a special company from a person who has been designated under paragraph (a), (b), or (c) or under this paragraph.
(4) The Lieutenant Governor in Council, having made not more than 2 designations under subsection (3) (a), (b), or (c) in relation to a special company, may make one further designation in relation to that special company, under subsection (3) (c), but otherwise must not make any further designations under subsection (3) (a) to (c) in relation to that special company.
30 For the purposes of this Part, the percentage limit referred to in section 29 (1) does not apply to a person acting as an underwriter, as defined in section 1 of the Securities Act in connection with a distribution as defined in section 1 of that Act, of voting shares during the period starting on the commencement date of that distribution and ending 150 days after the commencement date of that distribution.
31 (1) For the purposes of this Part, each of the rules set out in this section applies.
(2) A corporation is deemed to be affiliated with another corporation if one is the subsidiary of the other or if each of them is controlled by the same person.
(3) A corporation with share capital is deemed to be controlled by a person if shares of the corporation carrying more than 50% of the votes that may be cast to elect directors are held, other than for the purpose of giving collateral for a genuine debt, by or for the benefit of that person, and the votes carried by those shares are sufficient, if exercised, to elect a majority of the board of directors.
(4) A corporation without share capital is deemed to be controlled by a government in Canada if all or a majority of its members or directors are appointed or designated, either by their personal names or their names of office, by
(a) a statute or a regulation under a statute,
(b) the Governor in Council or the Lieutenant Governor in Council of a province, as the case may be, or
(c) a minister of the Crown in right of Canada or of a province, as the case may be, or
(d) any combination of paragraphs (a), (b) and (c).
(5) A corporation is deemed to be controlled by another corporation, individual, trust or government if at any time, in the opinion of the board, it is at that time in fact effectively controlled by the other corporation, individual, trust or government, either directly or indirectly, through the holding of shares of the corporation or any other corporation, through the holding of a significant portion of the outstanding debt of a corporation, individual or trust or by any other means whether of the same or of a different nature.
(6) A subsidiary is a corporation that is controlled by another corporation.
(7) A person is deemed to beneficially own voting shares if
(a) the shares are beneficially owned by a corporation controlled by that person or by an affiliate of that corporation, or
(b) the shares are beneficially owned by that person through a trustee, legal representative, agent or other intermediary.
(8) A corporation is deemed to beneficially own voting shares if those voting shares are beneficially owned by its affiliates.
(9) If a voting share of a special company is held jointly and one or more of the joint holders is a non-resident of Canada, the share is deemed to be held by a non-resident of Canada.
(10) If a corporation or trust that was at any time a resident of Canada becomes a non-resident of Canada, voting shares of a special company acquired by the corporation or the trust while it was a resident of Canada and held by it while it is a non-resident of Canada are deemed to be voting shares held by a resident of Canada for the use or benefit of a non-resident of Canada.
32 For the purposes of this Part, a person is deemed to be associated with another person if
(a) one of them is a corporation of which the other is an officer or director,
(b) one of them is a partnership of which the other is a partner,
(c) one of them is a corporation that is controlled by the other,
(d) both are corporations and one person is controlled by the same individual or corporation or the same government in Canada that controls, directly or indirectly, the other person,
(e) both are participants in a voting trust that relates to voting shares,
(f) both are agents of the Crown in right of Canada,
(g) both are persons performing on behalf of the Crown in right of Canada a function or duty in connection with the administration, management or investment of a fund or of money referred to in paragraph (a) (v) of the definition of agent in section 23,
(h) both are agents of the Crown in right of the same province,
(i) both are persons performing on behalf of the Crown in right of another province a function or duty in connection with the administration, management or investment of a fund or of money referred to in paragraph (a) (v) of the definition of agent in section 23,
(j) both are persons associated with the same person within the meaning of paragraphs (a) to (i), or
(k) both are parties to an agreement or arrangement a purpose of which, in the opinion of the board, is to require them to act in concert with respect to their interests in a special company.
33 Despite section 32,
(a) if one person who, but for this section, would be deemed to be associated with another person, submits to a special company a declaration stating that none of the voting shares held by him or her or to be held by him or her is, or will be, to his or her knowledge, held in the right of or for the use or benefit of himself or herself or a person with whom, but for this section, he or she would be deemed to be associated, neither person is deemed to be associated with the other so long as the voting shares from time to time held by the person who made the declaration are not held contrary to the statements made in the declaration,
(b) 2 persons that are corporations are not deemed to be associated with each other under section 32 (j) merely because each is deemed under section 32 (a) to be associated with the same person, or
(c) if it appears from the register of members of a special company that not more than a prescribed percentage of the voting shares of the special company are held by a member, he or she is not deemed to be associated with any other person, and no other person is deemed to be associated with him or her.
Division 4 – Transfer Voting and Redemption of Shares
34 (1) Subject to this section and the charter, the shares of a special company are transferable in accordance with the Company Act.
(2) A member of a special company must, on the request of the board made in accordance with the articles, submit a declaration to the special company with respect to any of the following:
(a) the member's direct or indirect ownership of shares of the special company;
(b) whether or not the member and the other person, in whose right or for whose use or benefit the share is held, are residents of Canada or Canadian citizens;
(c) whether or not the member is associated with another member;
(d) whether or not the member is a resident of Canada or a Canadian citizen;
(e) if the member is a corporation or trust, information establishing that it is a resident of Canada;
(f) other matters the board considers relevant for the purposes of determining whether the member complies with the requirements of this Part.
(3) If
(a) under this section a declaration has been requested by the board from a member, and
(b) the member fails or neglects to submit to the board a declaration satisfactory to it within 30 days after the day the request for the declaration was sent to the member,
the shares of the special company held by that member are deemed to be held in contravention of the charter until a declaration satisfactory to the board has been submitted to it.
(4) It is a condition of
(a) every subscription for a share of a special company, and
(b) every transfer of a share to be made or recorded in a register of members of a special company,
that the subscriber or transferee must, at the request of the board, submit to it a declaration to the same effect as the declaration referred to in subsection (2).
(5) Subject to subsection (7), if the board has requested a declaration under subsection (4), it must not accept a subscription for a share of a special company, or allow a transfer to be made or recorded in a register of members of a special company, unless
(a) the declaration has been submitted to the board, and
(b) it appears from the declaration that the subscriber or transferee would not, by the acceptance of the subscription for the shares subscribed for or the entry in a register of members of the shares being transferred, hold those shares in contravention of the charter.
(6) If, in the case of a subscription for or transfer of shares of a special company, it appears to the board that the total number of shares held by the subscriber or transferee, as shown by a register of members of the special company, would not exceed the percentage prescribed for the purpose of section 33 (c) if the subscription were accepted, the registration completed or the transfer allowed, the board is entitled to assume
(a) that the subscriber or transferee is not and will not be associated or deemed to be associated with another member of the special company, and
(b) unless the address to be recorded in the register of members of the special company for the subscriber or transferee is outside Canada, that the shares will not be held in contravention of the charter.
(7) If there is a subscription for shares of a special company pursuant to
(a) an offer of shares by way of rights granted by the special company to holders of its shares to purchase additional shares, or
(b) a distribution of shares to the public,
the special company may count as shares issued and outstanding all the shares included in the offer.
35 (1) When, to the knowledge of the special company, voting shares are held in contravention of the charter of a special company, a dividend must not be paid in respect of any of those voting shares.
(2) If dividends are paid by a special company in respect of voting shares then held in contravention of the charter, the special company may, by action, recover the amount of the dividends paid from the members to whom they were paid whether the special company had knowledge of the contravention or not.
(3) Despite subsection (1), the board may authorize the payment of a dividend in respect of any voting shares to a member who would otherwise be disentitled to it under that subsection if the board is of the opinion that the contravention was inadvertent or is of a technical nature, and a dividend so authorized and paid is not recoverable under subsection (2).
36 (1) If voting shares are held in contravention of the charter of a special company, the voting rights attaching to them must not be exercised.
(2) Voting shares held in contravention of the charter of a special company include shares deemed to be so held.
(3) The validity of
(a) the acceptance of a subscription for shares of a special company, or
(b) a transfer of shares of a special company that has been made or recorded in a register of members of a special company
is not affected by the fact that those shares are held in contravention of the charter of the special company.
(4) If voting rights pertaining to voting shares held in contravention of the charter of a special company are exercised at a general meeting of the members of the special company, a proceeding, matter or thing at the meeting is not void for that reason, but the proceeding, matter or thing is, at any time within one year after the start of the general meeting at which the voting rights were exercised, voidable at the option of the board by a resolution of the board.
37 (1) If voting shares are held in contravention of the charter of a special company, it may, on notice to the members and in the manner directed by the board, require the holder of the voting shares to dispose of them to another person who may hold voting shares within the period, not less than 60 days, limited by the notice.
(2) If voting shares referred to in subsection (1) have not been disposed of within the time limited by the notice, the special company may, at its option and at any time while those shares continue to be held in contravention of its charter, redeem them for cancellation on
(a) deposit by the special company of the amount of their redemption price in a special account with a savings institution, and
(b) giving notice of redemption to the persons and in the manner specified by the articles, including notice of the deposit referred to in paragraph (a),
and, on the giving of the notice, the rights of the holder and beneficial owner of them cease, except the right of a beneficial owner to receive out of the amount so deposited, without interest, the redemption price payable with respect to the shares on presentation and surrender of the certificates representing the shares.
(3) Interest payable by the savings institution on the deposit made under subsection (2) (a) must be paid to the special company.
(4) A special company
(a) is not bound to see to the application of the amount deposited or to the execution of a trust, whether express, implied or constructive, in respect of voting shares redeemed for cancellation under this section, and
(b) is not estopped by certificates outstanding in respect of voting shares redeemed for cancellation.
(5) The powers of a special company under this section may be exercised at its option, but if voting shares have, to its knowledge, been held in contravention of its charter for 10 years or a lesser period fixed by the articles, a special company must, in the manner provided by this section but subject to section 236 (1) of the Company Act, redeem those voting shares for cancellation.
(6) For the purposes of this section, the redemption price of voting shares is the lower of
(a) the issue price per share on the initial distribution of shares of that class, and
(b) the lowest closing price per share, of the shares of that class on the stock exchange designated by the board, occurring in the 12 month period preceding the date of giving notice of redemption.
(7) This section and sections 28 (1) and 29 (1) must be set out in each share certificate issued by a special company to represent a voting share, or by a writing attached to the share certificate.
(8) Shares redeemed under this section do not reduce the total number of issued and outstanding voting shares for the purposes of sections 28 (1) and 29 (1).
38 In determining for the purposes of this Part whether or not
(a) shares are held in contravention of the charter of a special company,
(b) a person is a resident of Canada,
(c) an individual is a Canadian citizen,
(d) a person is associated with another person, or
(e) a corporation is, directly or indirectly, controlled by persons who are not residents of Canada,
or any other circumstances relevant to the performance of the duties of the board under this Act, a special company and a director, officer, employee or agent of the company may rely on
(f) a statement made in a declaration submitted under section 33, or
(g) the knowledge of a director or officer of the circumstances,
and the special company, directors, officers, employees or agents are not liable in an action for anything done or omitted by them in good faith as a result of conclusions made by them on the basis of that statement or knowledge.
39 (1) The chair of the directors of a special company, its president and at least 70% of its directors must be Canadian citizens resident in British Columbia.
(2) If non-compliance with subsection (1) occurs because of
(a) a vacancy on the board or in the office of the chair or the president, or
(b) a director ceasing to be a Canadian citizen resident in British Columbia,
the proceedings of the board are valid, despite the non-compliance, until the appointment of a new chair, new president or new director, as the case may be, under the articles.
(3) A member of the Legislative Assembly is not eligible to be appointed as a senior officer, as defined in the Company Act, or to be elected or appointed or to act as a director of a special company.
40 If there is any conflict between this Part and
(a) the Company Act as it applies to a special company,
(b) the articles of a special company, or
(c) the memorandum of a special company,
this Part prevails.
41 The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
42 Despite the repeal of sections 12 to 15 and 18 to 20 of the Hydro and Power Authority Privatization Act, S.B.C. 1988, c. 39, the commission must not on or after the date of that repeal
(a) review or reconsider a certificate, order, approval, rule, regulation, endorsement or decision under the Utilities Commission Act or the Gas Utility Act made before that date by the Lieutenant Governor in Council in exercising any of the rights and powers and in performing any of the obligations, duties and functions given to the Lieutenant Governor in Council under Division 3 of Part 1 of this Act, or
(b) exercise its powers under section 99 and 100 of the Utilities Commission Act in respect of anything done before that date by the Lieutenant Governor in Council in exercising any of the rights and powers and in performing any of the obligations, duties and functions given to the Lieutenant Governor in Council under Division 3 of Part of this Act
except in accordance with terms of reference that the Lieutenant Governor in Council may by order specify.
Copyright (c) 2001: Queen's Printer, Victoria, British Columbia, Canada