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| See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
Deposited with Clerk of the Legislative
Assembly on August 14, 2000
WHEREAS it is desirable to create a perpetual body to receive donations in trust for charitable purposes to the end that the returns arising from its assets and those donations are devoted perpetually to charitable purposes:
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act:
"base amount" means, for a particular trust fund at a particular time,
(a) the dollar value of all contributions at the time those contributions were made to the trust fund before the particular time, other than contributions that were subsequently withdrawn from the trust fund,
less
(b) any amounts that were added to the distributable amount of the trust fund under section 9 (6) before the particular time;
"board" means the board of the foundation under section 5;
"common trust fund" means a fund established under section 9 (1);
"custodian" means a trust company or any other body that is selected by the board to hold some or all of the funds or property of the foundation and that has the legal capacity to hold the funds and undertake any other obligations under this Act or imposed in any contract with the foundation;
"distributable amount" means, for a particular trust fund at a particular time, the sum of
(a) the amount by which the fair market value of the trust fund at the particular time exceeds the base amount of the trust fund at the particular time, and
(b) any portion of the reserve amount that the board adds to the distributable amount under section 9 (6);
"donation" includes a gift, bequest or devise;
"foundation" means the Vancouver Foundation continued under section 3;
"foundation endowment" means any donation to the foundation
(a) on trust terms that expressly or impliedly create a trust, or
(b) on terms under which expressly or impliedly the foundation has the discretion to create a trust and does so;
"independent trust fund" means a fund established under section 9 (5);
"original directors" means the persons listed in the Schedule;
"property" means, in relation to a foundation endowment the assets of which have been invested in a trust fund, the foundation endowment's interest in the trust fund, but does not include the amount that is deemed to be income of the foundation endowment under section 10 (4), unless the income has been accumulated and added to the property of the foundation endowment under section 7 (4);
"reserve amount" means, for a particular trust fund at a particular time in a fiscal year of the foundation, 7% of the base amount for the trust fund determined as of December 31 of the immediately preceding fiscal year, less any amounts that were added to the distributable amount under section 9 (6) before the particular time;
"returns" means the distributable amount for a trust fund;
"trust fund" includes a common trust fund and an independent trust fund;
"United Way of the Lower Mainland" means the United Way of the Lower Mainland, a society under the Societies Act.
2 This Act is to be construed liberally to the end that the courts of British Columbia may
(a) assist in making effective gifts for charitable purposes, and
(b) in case of any failure on the part of the foundation or the board, do what may be necessary to carry out the true intent and purpose of this Act.
3 The Vancouver Foundation is continued as a corporation, without share capital, consisting of the members of the board of the foundation.
4 (1) The objects of the foundation, all of which are deemed to be charitable, are the following:
(a) to provide care for needy men, women and children, and in particular the sick, aged, destitute and helpless;
(b) to promote educational advancement and scientific or medical research for the increase of human knowledge and the alleviation of human suffering;
(c) to support the relief of poverty;
(d) to promote recreational activities and the conservation of human, natural and heritage resources;
(e) to support any other charitable purposes that the board considers to be of benefit to communities;
(f) to make grants to qualified donees within the meaning of the Income Tax Act (Canada).
(2) The prime purpose of the foundation is to carry out its objects in British Columbia, but the foundation may, at the discretion of the board,
(a) accept donations that a donor directs may be used outside of British Columbia, and
(b) use those donations, in whole or in part, to carry out its objects in any part of Canada in accordance with the donor's directions.
5 (1) The board of directors of the foundation is to consist of at least 10 and not more than 18 persons, with the directors determining the number of directors from time to time in the bylaws of the foundation.
(1.1) If the number of directors is below the minimum number set out in subsection (1) or in the bylaws, as applicable, the board continues to have the authority to carry out its duties and exercise its powers until all vacancies are filled.
(1.2) Subject to section 6, the board consists of the following members:
(a) the Chief Justice of the Supreme Court of British Columbia or, if applicable, the judge appointed by the Chief Justice under that section;
(b) a member of the Law Society of British Columbia who has been nominated by the Law Society of British Columbia in accordance with the bylaws of the foundation and whose nomination has been accepted by the board;
(c) a member of the Organization of Chartered Professional Accountants of British Columbia who has been nominated by the Organization of Chartered Professional Accountants of British Columbia in accordance with the bylaws of the foundation and whose nomination has been accepted by the board;
(d) a person who has been nominated by the United Way of the Lower Mainland in accordance with the bylaws of the foundation and whose nomination has been accepted by the board;
(e) other persons that are elected from time to time by the board.
(1.3) The board may decline a nomination under subsection (1.2) (b), (c) or (d) if, in the opinion of the board, the nominee does not have the skills, knowledge or experience to benefit the foundation.
(2) No salary or reward or profit of any kind may be paid or given to any member of the board.
(3) A member of the board is not personally liable for loss or damage suffered by a person as a result of anything done or not done in good faith in acting or purporting to act on behalf of the foundation.
6 (1) The Chief Justice of the Supreme Court of British Columbia may appoint a judge of that court to hold office as a member of the board under section 5 (1.2) (a) in the place of the Chief Justice for a term the Chief Justice determines.
(1.1) In the event that an organization that is entitled to nominate a director under section 5 (1.2) fails to do so in the manner set out in the bylaws of the foundation, or if the board declines a nomination under section 5 (1.3), the members of the board may elect a person to fill a vacancy.
7 (1) The foundation has the following powers:
(a) to receive donations of every kind and description;
(b) to refuse to accept any donation in the sole discretion of the board;
(c) to hold, control, administer and deal with property of every kind and description, whether real or personal and wherever situated;
(d) if not in contravention of an express term of the donation under which it is received, to convert any property received or held by the foundation into any other form and, for this purpose, to sell, assign, transfer, lease, exchange or otherwise dispose of the property;
(e) to pass on and entrust to one or more custodians the custody of all or any portion of the property received or held by the foundation, in the manner and portions that the board considers proper, and to enter into agreements with custodians in relation to this;
(f) to lease any lands held by the foundation;
(g) to pay the expenses of administering the foundation and the properties received or held by the foundation, and to charge these expenses against the income or the property of each foundation endowment.
(2) Subject to any express direction to the contrary in any Act or in the terms of a gift, the powers conferred on the board may be exercised in respect of all funds held by the foundation, whether the funds were received by the foundation before or after this section came into force.
(3) All transfers, assignments or conveyances of property by the foundation must be executed by and on behalf of the foundation in the manner established by bylaw of the foundation, and must also be executed by the trustee of the property to be transferred, assigned or conveyed.
(4) Despite section 10 (4) or the terms of a foundation endowment that require that income of the foundation endowment must be disbursed for charitable objects, the board may
(a) accumulate the income, or any amount of the income, and add it to the property of the foundation endowment, and
(b) reinvest the accumulated income as a contribution to a trust fund.
(5) The powers conferred on the board under subsection (4) of this section do not apply to a foundation endowment if the terms of the endowment require that income must be disbursed to a particular organization, unless the organization consents to the exercise of those powers.
8 (1) Subject to any specific direction by a donor or the Supreme Court,
(a) the foundation may invest its funds and other property, and the funds and property entrusted to or vested in it, and
(b) the board may direct the investment of any funds or other property that are entrusted to a custodian,
in the manner that the board considers fit and prudent as if the foundation were a person of full age and capacity beneficially entitled to the property.
(2) Subject to any express direction to the contrary in an Act or in the terms of a gift, the board may delegate its powers of investment, whether the powers arise under this or any other Act, at law or under the terms of a gift, to any person or body to any extent, for any period, on any terms, including terms as to the payment of the delegate, and in the manner that the board considers fit.
(3) As limits on the authority under subsection (2), the board
(a) is subject to the obligations to which it would normally be subject in selecting and supervising delegates, and
(b) must not in any contract with a delegate relieve the delegate from the obligation to exercise the degree of care that the delegate would be required to exercise at law.
(4) For the purposes of subsection (3) (a), a review by the board of the performance of a delegate conducted at least twice in each fiscal year is deemed to satisfy the board's obligation to supervise unless the contrary is proven.
9 (1) Despite anything contained in another provision of this Act but subject to subsection (4), the board may establish one or more common trust funds in which property of its foundation endowments is combined for the purposes of facilitating investment or for such other purposes as the board considers advisable.
(a) determine which property is to be included in a common trust fund and which property is to be withdrawn from a common trust fund,
(b) determine the method of valuation of investments in common trust funds and the date or dates on which the valuation may be made, and
(c) make regulations concerning the operation of common trust funds.
(3) The board may invest the property that is held in a common trust fund in any investments that the board considers advisable and may do so
(a) in such a way as to enhance the value of the trust fund, and
(b) without regard to the fact that the terms of foundation endowments having property in the trust fund provide for distribution of income only.
(4) An express direction in writing by a donor made on or before the date on which a donation is made, that the property included in the donation must not be included in a common trust fund, is binding on the foundation.
(5) The property of a foundation endowment that is not combined in a common trust fund must be held in an independent trust fund established by the board for the purposes of investment.
(6) The board may add a portion of the reserve amount to the distributable amount of a trust fund in an amount that the board from time to time determines, until the reserve amount has been exhausted.
10 (1) The board may from time to time, but not less often than once in each fiscal year, distribute the portion of the returns that it considers proper from each of its trust funds to its foundation endowments.
(2) In exercising its powers under subsection (1), the board must develop retention and distribution policies, and in doing this must take into account the following:
(a) the foundation's need to maintain a reasonable balance between the base amount of its trust funds and the amounts to be distributed;
(b) the estimated total returns;
(c) existing and anticipated requirements;
(d) the short and long term needs of the foundation;
(e) the foundation's disbursement quota requirements under any applicable taxation legislation;
(f) any other factors the board considers relevant.
(3) If a trust fund includes property of more than one foundation endowment, the board must make regulations to provide for the making of appropriate adjustments in the value of the interests of foundation endowments in the trust fund when the amounts distributed to all foundation endowments are not in the same proportion to the value of their interests in the trust fund.
(4) The amount distributed under subsection (1) is deemed to be the income of the foundation endowments to which it is distributed and must be used in accordance with the terms of those foundation endowments.
(5) Subject to subsections (6) and (7), this section applies in respect of all donations to the foundation and all property held by the foundation, whether the donations were made or the property was received before or after this section came into force.
(6) This section does not apply if the terms of a particular donation or endowment expressly provide for a different distribution than that provided for in this section.
(7) The terms of a particular donation or endowment must not be construed as providing for a different distribution solely because
(a) the donation creating the foundation endowment is designated expressly or by implication as an endowment, or
(b) the donation or endowment contains a direction or an authorization to use only "income" or "interest" or "dividends", or to "preserve capital", or any term or terms of similar import.
11 (1) For the purpose of giving effect to the objects of the foundation, the board must carry out the directions of donors if definite directions in writing are given.
(2) If a donor is deceased or is otherwise not available to clarify directions given by the donor with respect to the use of a donation, the board may, in its sole discretion in cases of doubt, deal with the property.
(3) Subject to subsection (4), a decision of the board under subsection (2) is final and binding on all persons affected.
(4) A person affected by a decision under subsection (2) may, within 60 days after the decision was made, apply to the Supreme Court and the court may make an order it considers reasonable in the circumstances.
12 (1) In the absence of any direction by the donor, all contributions are to be invested and the net income devoted in perpetuity for charitable purposes as provided in this Act.
(3) For the purposes of subsection (1),
(a) a gift is deemed to be given without specific directions if it is a gift made by the donor to the foundation
(i) without any direction, qualification or explanation designating the application of the gift, or
(ii) without any description of intended purpose or use of the gift, and
(b) a gift is deemed to be given with specific directions if it is a gift made by the donor to the foundation for use by the foundation in its discretion.
(4) to (9) [Repealed 2010-20-9.]
(10) All powers, authority and discretion that are exercisable by the board under this section may be exercised in the full and absolute discretion of the board, or by a majority of the board present at a duly constituted meeting of the board, and the decision of the board or the majority is final and conclusive.
14 If a donation is made to the foundation in trust of any property to take effect in future, the board may accept and exercise
(a) any powers of appointment, settlement or distribution with respect to the income in whole or in part derivable from the property in the interim, and
(b) the power to nominate executors and trustees in the manner provided in the instrument creating the trust.
15 (1) Any form of words is sufficient to constitute a donation for the purpose of this Act, so long as the donor indicates an intention to contribute presently or prospectively to a fund or foundation of the general character indicated in this Act.
(2) The rule against perpetuities does not apply to donations of the character indicated in this Act.
16 (1) The foundation may hold in its own name any donation it receives, or any other funds or property, or it may appoint one or more custodians to hold some or all of its donations, funds or property on its behalf.
(2) The foundation may at any time, by resolution passed by a majority of the board, revoke the appointment of a custodian and may appoint another custodian.
(3) A custodian appointed by the foundation must
(a) have custody of all funds or property entrusted to it by the foundation,
(b) make all investments, reinvestments, conversions, sales or other dispositions of the funds or property as instructed in writing by the board,
(c) under the direction of the board, give effect to and observe all directions given to it by the board with regard to funds or property, and
(d) distribute from the money in its possession the sums in the manner that the board by resolution directs.
(4) A custodian is not accountable for any act or omission if the act or omission was authorized in writing by the board.
17 If a charity is
(a) established, or authorized to operate, under the law of Canada, and
(b) registered as a charity under the Income Tax Act (Canada),
the charity may entrust funds to the foundation and the foundation may, on terms agreeable to the foundation and the charity, manage and invest the funds.
18 (1) A person holding property in trust may, on notice to the foundation, apply to the Supreme Court for an order under this section if
(a) the property is held in trust for
(ii) the benefit of any institution or class or group of persons, or
(iii) any purpose of a nature similar to the objects for which the income of the foundation may be used under this Act, and
(i) because the object of the trust has ceased to exist or the trust has become substantially incapable of performance, the trust cannot be further administered, or
(ii) the trustee of the property wishes to be discharged from the administration of the trust.
(2) On an application under this section, the Supreme Court may make an order directing the trustee to assign, set over, transfer and convey the trust property to the foundation, to be used by the foundation
(a) for the charitable purpose or purposes specified in the order, or
(b) if no purpose is specified in the order, in the same manner and for the same purposes as other donations that may be made to the foundation under this Act.
(3) On complying with an order under this section, the trustee is relieved and discharged of all further responsibility in respect of the property handed over under the order.
19 (1) The foundation may apply to the Supreme Court for an order under this section in relation to property of which it is trustee, if the trust cannot be administered because the object of the trust has ceased to exist or the trust has become substantially incapable of performance.
(2) On an application under this section, the Supreme Court may make an order directing the trust property to be used by the foundation
(a) for the charitable purpose or purposes specified in the order, or
(b) if no purpose is specified in the order, in the same manner and for the same purposes as other donations that may be made to the foundation under this Act.
20 (1) The board may establish voluntary advisory committees to assist the board in the conduct of the affairs of the foundation.
(2) No salary or reward or profit of any kind may be paid or given to any member of an advisory committee.
(a) appoint officers and engage employees, at the salaries or for the remuneration that the board considers proper and necessary, and
(b) incur expenditure incidental to the conduct of the affairs of the foundation and the carrying out of its objects that the board considers necessary.
(2) No salaries or other expenditures may be paid unless payment is approved by a person who has signing authority for the foundation under the bylaws of the foundation.
22 The board may, by resolution passed by at least 75% of the directors, make bylaws regulating the carrying out of the duties that are assigned by this Act to the foundation or the board, including bylaws establishing the following:
(a) the fiscal year of the foundation;
(b) the times of distribution;
(c) the times of audits and their publication;
(d) the appointment of a chair;
(d.1) the number of members of the board, the manner of their selection, removal, replacement and terms of office;
(e) any other matters that are considered advisable for the convenient and efficient carrying out of the objects of this Act.
(a) have an audit of the financial statements of the foundation made at least once in every fiscal year by an independent auditor, and
(b) make copies of the auditor's report available to the general public on request.
(2) A custodian appointed by the board under this Act must give full information and permit the necessary inspection to enable the audit to be made.
(Section 1, definition of "original directors")
Original Directors
Robert Barnett MacKay
Charles Thomas McHattie
Alexander Douglas Wilson
Eric Vickers Chown
Gordon Farrell
Whitford Julian Van Dusen
Alan Holmes Williamson
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