Earlier this week I posted about extended flexibility for corporate meetings in Ontario. That prompted a question from a member in another province. That, in turn, prompted this cross-country corporate check up! Below you’ll find a summary of special and regular provisions for annual general meetings (AGMs) in each province and territory.
The temporary relief provided by Ministerial Order 009-2020 is no longer effective as of August 15, 2020. Requirements for holding corporate AGMs and other meetings resume, and annual return filing timeless are reinstated.
The Ministerial order had granted a variety of administrative relief for organizations incorporated under the Societies Act, including suspending the obligation to hold in-person meetings, suspending report and returns to the Registrar, extending time for charitable registrations and renewals, and others.
Ministerial Order No. M116 came into effect April 21 and will remain in effect until the declaration of a state of emergency expires or is cancelled (it was again extended, now until November 10, 2020).
Additionally, section 71 of the Societies Actprovides flexibility for the timing of AGMs. Under s.71(3) the Registrar of Companies extended the date by which a society must hold its AGM to a date not later than November 1 of the calendar year after the calendar year in which an AGM would otherwise have to be held, and which the Registrar authorizes.
The options are helpfully summarized here.
In Manitoba, Order in Council 257/2020 has replaced Order in Council 132/2020. The new Order is almost identical to the old. It allows for electronic attendance at a meeting if the means permit everyone to adequately communicate with each other during the meeting and it applies “even if such means are not permitted or are specifically excluded by the incorporated body’s by-laws” (see s 7(2) of the Order).
If a notice of meeting has already been given and it is later changed, information about the change must be provided within a reasonable time via email and (where applicable) posting it to the corporation’s website but a revised notice of meeting is not otherwise required. Voting can take place electronically so long as the board of directors takes “reasonable measures to ensure” that voter identity is verified and each person who votes does so only in their own right or by a valid proxy.
There are similar provisions for Directors’ meetings.
The key difference in the new Order is that it doesn’t give any more time extensions for holding AGMs. The Order is effective October 1, 2020 – March 30, 2021 unless revoked sooner.
Among other legislative provisions, the Order suspends and replaces portions of The Cooperatives Act (ss 201(1), (2), 222(7), (8), s 224, ss 236(3), 379(1), (2)), the Cooperatives Regulation Man Reg 95/99 (s 11.3), and The Corporations Act (ss 109(9), 126(4), s 126.1, ss 127(a), s 135).
There are no specific orders or directives related to the Corporate Registry of Service New Brunswick that speak to meeting delays or flexibility. Non-profits and charities operate under the Companies Act, which provides that all provisions of the Act apply to every non-profit corporation.
What to do? Check your by-laws to know how your corporate meetings are to take place. If your by-laws are silent, s 94 of the Act directs how elections should take place.
Section 94.1 of the act allows for directors to participate in director meetings or committee meetings by phone or “other communication facilities” if the by-laws provide for it or, subject to the by-laws, all the directors consent to that format.
Similarly, section 103.2 allows for attendance at member meetings by phone or “other communication facilities” that allow everyone participating to hear each other if the by-laws provide for it or, all members entitled to vote consent to that format.
Newfoundland & Labrador
- A non-profit corporation can delay holding its AGM for 6 months if the time to call an AGM occurred between May 3, 2020 and October 31, 2020
- Annual 2020 return filings can be delayed for 6 months if the anniversary month of incorporation was May to October
A Ministerial Direction allows for virtual meeting options or meeting deferral whether or not it would otherwise be allowed under any other applicable law, including enactments, articles, bylaws or governing agreements. This directive is in place for the duration of the State of Emergency (unless terminated earlier by the Minister of Municipal Affairs and Housing). It has been further extended to November 15, 2020.
It applies to societies incorporated under the Societies Act as well as all other societies or corporate bodies, incorporated by or under provincial laws or otherwise.
The Northwest Territories has no specific orders or directives related to the Societies Act that speak to meeting delays or flexibility.
What to do? Check your by-laws to know how your corporate meetings are to take place. Unless your bylaws state otherwise, section 16.1 of the Act allows for a member to attend an AGM by phone or other mode of communication if everyone can hear each other.
Nunavut has no specific orders or directives related to the Societies Act that speak to meeting delays or flexibility.
What to do? Check your by-laws to know how your corporate meetings are to take place. Section 5 of the Act requires that a society’s by-laws set out the mode of general meetings and section 17 of the Act requires that the AGM be held in Nunavut. The Act is otherwise silent on how societies are to hold the meeting.
- Allowing corporate member meetings to be held by phone or electronic means (Section 3; temporarily suspending s125.1 of the Corporations Act)
- Allowing corporate director meetings to be held by phone or electronic means (Section 5; temporarily suspending s283(3.1) of the Corporations Act)
- Allowing elections and votes to be held by alternate means when it’s not feasible to abide by the bylaws (Section 6; temporarily suspending s287(1) of the Corporations Act)
The time extension granted for annual meetings (section 7) was not renewed. The amendments allowing for deferred annual meetings will expire 120 days after the end of the emergency period. The emergency period began March 17. It ended when the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force on July 24, 2020.
Corporations must have held (or hold) their annual meetings as follows:
- If the last day you were required to hold your AGM was during the emergency period, the meeting must have been held within 90 days after July 24, 2020 (by October 22, 2020)
- If the last day you were required to hold your AGM was within 30 days after the emergency, the meeting must be held within 120 days after July 24,2020 (by November 21, 2020)
Prince Edward Island
Prince Edward Island has no specific orders or directives related to the Companies Act that speak to meeting delays or flexibility. Charities operate under Part II of the Companies Act as well as applicable sections in other parts of the Act.
Your bylaws should tell you all you need to know about your meetings. To be granted letters patent for a non-profit company, a petition must accompany the application. That petition must include a variety of detailed information including the “mode of holding meetings, provision for quorum, rights of voting…” as per s 90(2)(b). The Act does not speak to digital, telephone, remote or other forms of meetings.
To help plan compliant meetings, see PEI Gatherings Guidance.
An Order in Council (1150-2020) issued on November 4, 2020 renews the public health emergency along with a laundry list of other Orders in Council and Ministerial Orders.
One of the renewed orders was Ministerial Orders (2020-029). This Order allows any meeting of a deliberative body that normally takes place in person to be held by other means so long as everyone can communicate with each other immediately. If a secret ballot would normally be required, it can be held by any means of communication that everyone agrees upon, or alternatively, in a way that preserves the secret nature of the vote and can be verified.
Since November 2019, the Act has allowed meetings by phone, videoconference or other digital means so long as everyone can communicate with each other immediately (ss 89.2-89.4, 224). But this permission in the Act is subject to bylaws of the corporation. So if the bylaws prohibit phone or electronic meetings, the Act isn’t much help.
That’s why the Order 2020-029 was necessary. It essentially overrides any bylaw or other corporate provisions that would prohibit alternate meeting options. Since the public health emergency has been continually renewed since it was declared March 13, it is almost certain it will continue to be renewed, extending the option for virtual meetings.
In Saskatchewan, OC 222/2020 authorizes non-profit corporations to hold annual general meetings (AGMs) by phone, video-conference or other electronic means, so long as the articles or bylaws do not prohibit it and participants are able to adequately communicate with one another. It is effective as of the day of filing, which is May 14, 2020.
The existing Non-profit Corporations Act requires that member meetings “shall be held at the place within Saskatchewan provided in the bylaws” (see s.122). The Order amends the definition of “held at the place” by adding a definition to s.13 of the existing Non-profit Corporations Regulations, 1997 to remove the geographic restriction.
A Ministerial Order issued earlier this year (May 13, 2020) remains in effect. A society under the Societies Act, an association under the Cooperative Associations Act and for-profit corporations are allowed to hold AGMs partially or entirely by phone or electronic means even if the bylaws don’t provide for the meeting, if the directors choose to hold it by those means or a member calls such a meeting and it allows all member to attend, participate, and where applicable, vote.
Similarly, directors meetings can be held electronically.
These meetings are deemed to have been held in Yukon and participants are considered to be present.
The order applies for the “designated period” which means the period beginning March 17, 2020 and for societies and associations, ends 90 days after the end of the state of emergency. The state of emergency was renewed for the second time on September 9, 2020 for 90 days. It is retroactive to any time in the designated period, or before the state of emergency was declared (March 27, 2020).
That means the 2020 AGM can be extended to the shorter of the following two options: (1) 21 months after the previous AGM and no more than 12 months after the last financial year-end or (2) December 31, 2020. You don’t have to apply to Corporations Canada to take advantage of these extensions.
As for virtual meetings, you need to check your by-laws to see what they allow. If the bylaw specifically allows virtual meetings, great! You can hold a fully virtual meeting. If the bylaw is silent or doesn’t permit virtual meetings, you can consider a partially virtual meeting. Some attend in person and other participate virtually as long as everyone can communicate.
Corporations Canada suggests an alternative could be to sign a resolution instead of an AGM. Practically, this is probably only an option for corporations with a small membership. The resolution must, at minimum include (1) director elections, (2) financial statements, (3) appointing the auditor or waiving such appointment. All other business items normally communicated at the AGM must also be included.
For more, check out this article on Holding a Successful AGM.
Charity leaders are invited to share how they are responding to the COVID-19 pandemic within their organization in our online community forum, The Green: COVID-19 Response Room.
Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.