Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
This Act may be cited as the Canada Foundation for Sustainable Development Technology Act.
Interpretation
The definitions in this section apply in this Act.
board means the board of directors of the Foundation. (conseil)
Chairperson means the Chairperson of the board appointed under paragraph 9(2)(a). (président)
corporation means the corporation described in the order made under subsection 35(1). (société)
director means a person who is on the board and includes the Chairperson. (administrateur)
eligible project means a project carried on, or to be carried on, primarily in Canada by an eligible recipient to develop and demonstrate new technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil. (travaux admissibles)
eligible recipient means an entity that
is established in Canada and carries on or, in the opinion of the board, is capable of carrying on eligible projects;
meets the criteria of eligibility established in any agreement entered into between Her Majesty in right of Canada and the Foundation for provision of funding by Her Majesty to the Foundation; and
has legal capacity or is composed of organizations, each of which has legal capacity. (bénéficiaire admissible)
employee or agent of Her Majesty in right of a province does not include an employee or agent of Her Majesty in right of a province whose duties and functions in that capacity are restricted to work in a university, college or other educational institution. (fonctionnaire ou mandataire de Sa Majesté du chef d’une province)
Foundation means the Canada Foundation for Sustainable Development Technology referred to in section 3. (Fondation)
member means a person who is a member of the Foundation. (membre)
Minister means the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the purposes of this Act. (ministre)
not-for-profit organization means a corporation, society, association, university, research institute, organization or body no part of whose income is payable to or otherwise available for the personal benefit of any of its proprietors, members or shareholders. (organisation sans but lucratif)
special resolution means a resolution of the members passed by a majority of not less than two thirds of the votes cast by the members who voted on the resolution at a meeting of members or signed by all the members entitled to vote on the resolution. (résolution extraordinaire)
sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs. (développement durable)
Continuation of the Corporation
The corporation is continued as a corporation without share capital, to be called the Canada Foundation for Sustainable Development Technology, consisting of the Foundation’s members and directors.
If under any Act of Parliament, any instrument made under an Act of Parliament or any contract, licence or other document, a power, duty or function is vested in or exercisable by the corporation, the power, duty or function is vested in or exercisable by the Foundation.
Every reference to the corporation in any deed, contract, agreement or other document executed by the corporation shall, unless the context otherwise requires, be read as a reference to the Foundation.
All rights and property of the corporation and all obligations of the corporation are transferred to the Foundation.
Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the corporation may be brought against the Foundation in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the corporation.
Any action, suit or other legal proceeding to which the corporation is party pending in any court immediately before the day on which this section comes into force may be continued by or against the Foundation in like manner and to the same extent as it could have been continued by or against the corporation.
Every by-law of the corporation is, to the extent that it is not inconsistent with this Act, a by-law of the Foundation.
Nothing in this Act affects the status of any person who, immediately before the day on which this section comes into force, was an officer or employee of the corporation except that, as of that day, the person is an officer or employee, as the case may be, of the Foundation.
The Foundation is not an agent of Her Majesty.
The objects and purposes of the Foundation are to provide funding to eligible recipients for eligible projects.
For the purposes of carrying out its objects and purposes, the Foundation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
The head office of the Foundation shall be in a place in Canada designated by the Governor in Council.
The following provisions of the Canada Business Corporations Act apply, with any modifications that the circumstances require, to the Foundation and its directors, members, officers and employees as if the Foundation were a corporation incorporated under that Act, this Act were its articles of incorporation and its members were its shareholders:
section 16 (by-law not required to confer powers on Foundation, restriction on powers of Foundation and validity of acts of Foundation);
subsection 21(1) (access to Foundation’s records by members and creditors);
section 23 (corporate seal not needed to validate instrument);
subsections 103(1) to (4) (powers of directors to make and amend by-laws, members’ approval of by-laws and effective date of by-laws);
subsection 105(1) (qualifications of directors);
subsection 108(2) (resignation of director);
section 110 (right of director to attend members’ meetings and statements by retiring directors);
subsections 114(1) and (2) (place of directors’ meetings and quorum);
section 116 (validity of acts of directors and officers);
section 117 (validity of directors’ resolutions not passed at meeting);
section 120 (conflict of interest of directors);
subsection 122(1) (duty of care of directors and officers);
section 123 (directors’ dissents);
subsections 124(1) to (4) (indemnification of directors and insurance for directors’ liability);
paragraph 133(b) (special meetings of members);
section 155 (financial statements);
section 158 (approval of financial statements by directors);
section 159 (sending financial statements to members before annual meeting and penalty for failure);
section 161 (qualifications of auditor);
section 168 (rights and duties of auditor);
section 169 (examination by auditor);
section 170 (right of auditor to information);
subsections 171(3) to (9) (duty and administration of audit committee and penalty for failure to comply);
section 172 (qualified privilege in defamation for auditor’s statements); and
subsections 257(1) and (2) (certificates of Foundation as evidence).
The descriptive words in parentheses that follow a reference to a provision of the Canada Business Corporations Act in subsection (1) form no part of that subsection but are inserted for convenience of reference only.
The Canada Not-for-profit Corporations Act does not apply to the Foundation.
Directors
The board of directors of the corporation ceases to exist and there shall be a board of directors of the Foundation that shall supervise the management of the business and affairs of the Foundation and, subject to the by-laws of the Foundation, exercise all its powers.
Subject to subsection (4), the board consists of
the Chairperson of the board appointed by the Governor in Council on the Minister’s recommendation;
six persons appointed by the Governor in Council on the Minister’s recommendation; and
eight persons appointed by the members in accordance with subsection 13(5) and the by-laws of the Foundation.
A person is not eligible to be appointed as a director if the person
is a member of the Senate, the House of Commons or the legislature of a province;
is an employee or agent of Her Majesty in right of Canada or in right of a province;
does not ordinarily reside in Canada; or
is disqualified under subsection 105(1) of the Canada Business Corporations Act.
If the Chairperson is appointed before directors have been appointed under paragraph (2)(c), the Chairperson and any other directors that may have been appointed under paragraph (2)(b) constitute the board until directors are appointed under paragraph (2)(c) and may
undertake the organization of the Foundation including the appointment of officers and employees;
make banking arrangements for the Foundation;
enact organizational by-laws for the Foundation; and
receive on behalf of the Foundation any moneys paid to the Foundation.
Until directors are appointed under paragraph (2)(c), the Foundation shall not provide any funding from the funds of the Foundation or enter into any agreements or arrangements, or review any applications, for or in respect of funding to be provided from the funds of the Foundation.
The operation of the Foundation under subsection (4) by the Chairperson and any directors appointed under paragraph (2)(b) shall not, despite subsection 83(2) of the Financial Administration Act, result in the Foundation being considered, for the purposes of Part X of that Act or for any other purpose, to be wholly owned directly by Her Majesty in right of Canada.
Except where they cease to be directors under subsection (6), directors shall continue to hold office until their successors are appointed.
A director is eligible to be reappointed for one or more terms not exceeding five years each.
A person appointed to fill a vacancy in the office of a director who has ceased to hold office before the expiry of the director’s term of office shall be appointed to hold office for the unexpired portion of that term.
A director ceases to be a director when the director
dies;
resigns;
is appointed to the Senate;
is elected to the House of Commons or to the legislature of a province;
becomes an employee or agent of Her Majesty in right of Canada or in right of a province;
ceases to be ordinarily resident in Canada;
becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or
is removed from office under subsection (2).
The appointment of directors shall be made having regard to the following considerations:
the need to ensure, as far as possible, that at all times the board will be representative of
persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil,
the business community, and
not-for-profit organizations;
the importance of having a board that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and
the need for a board that has sufficient knowledge of technologies that promote sustainable development.
From the funds of the Foundation, the directors
may be paid remuneration that is fixed by the Foundation’s by-laws; and
are entitled to be paid reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.
Except as provided under subsection (1), no director shall profit or gain any income or acquire any property from the Foundation or its activities.
Members
The persons who are members of the corporation cease to be members of the corporation.
There shall be 15 members of the Foundation.
The Governor in Council shall without delay appoint seven persons as members of the Foundation, on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry.
As soon as possible after the appointment of the seven members under subsection (2), the Minister shall make arrangements for a first meeting of those members.
At the first meeting of the seven members appointed under subsection (2), or at a meeting held as soon after that meeting as possible, those members shall appoint eight further members of the Foundation.
The appointment of a person as a member to succeed a person whose term as a member expires shall be made by the members at a meeting of members.
The appointment of a person as a member to fill a vacancy in the membership caused by a person ceasing to be a member before the member’s term as a member expires shall be made by the members at a meeting of members.
A person is not eligible to be appointed as a member if the person
is a member of the Senate, the House of Commons or the legislature of a province;
is an employee or agent of Her Majesty in right of Canada or in right of a province;
is a director;
does not ordinarily reside in Canada; or
is disqualified under subsection 105(1) of the Canada Business Corporations Act.
Except where they cease to be members under subsection (6), members shall continue to hold office until their successors are appointed.
A member is eligible to be reappointed for one or more terms not exceeding five years each.
A person appointed to fill a vacancy in the office of a member who has ceased to hold the office before the expiry of the member’s term of office shall be appointed to hold office for the unexpired portion of that term.
A member ceases to be a member when the member
dies;
resigns;
is appointed to the Senate;
is elected to the House of Commons or to the legislature of a province;
is appointed as a director;
becomes an employee or agent of Her Majesty in right of Canada or in right of a province;
ceases to be ordinarily resident in Canada;
becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or
is removed from office under subsection (2).
The appointment of members shall be made having regard to the following considerations:
the need to ensure, as far as possible, that at all times the membership will be representative of
persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address issues related to climate change and the quality of air, water and soil,
the business community, and
not-for-profit organizations;
the importance of having membership that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and
the need for a membership that has sufficient knowledge of technologies that promote sustainable development.
Members shall serve without remuneration but are entitled to be paid from the funds of the Foundation reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.
Except as provided under subsection (1), no member shall profit or gain any income or acquire any property from the Foundation or its activities.
Staff
The board may appoint any officers, employees and agents of the Foundation that it considers necessary to carry out the objects and purposes of the Foundation.
Subject to the by-laws of the Foundation, the board may designate the offices of the Foundation and specify the duties and functions of each office.
Directors and members are not eligible to be employees or agents of the Foundation.
The directors, members, officers, employees and agents of the Foundation are not, because of being directors, members, officers, employees or agents of the Foundation, part of the federal public administration.
Operations
From its funds, the Foundation may pay salaries and wages of its officers and employees, rent for its accommodation, remuneration for its directors and agents, reimbursement to the directors and members for reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence, and other costs and expenses of carrying on the business of the Foundation.
From its funds, the Foundation may provide funding to eligible recipients to be used by them solely for the purposes of eligible projects in accordance with any terms and conditions specified by the Foundation in respect of the funding, including terms and conditions as to repayment of the funding, intellectual property rights and the maximum amount and proportion of funding for eligible projects to be provided by the Foundation.
The Foundation shall enter into an agreement with an eligible recipient respecting, among other things,
the manner in which the Foundation will make advances in respect of funding to the eligible recipient and when those advances will be made;
any terms or conditions on which the funding will be provided, including those terms and conditions referred to in subsection (1);
the evaluation of the eligible recipient’s performance in achieving the objectives of the eligible project and the evaluation of the results of the project, including the potential performance of the technology that is developed and demonstrated by the project; and
if the eligible recipient is composed of organizations, each of which has legal capacity, the requirement for those organizations to be jointly and severally or solidarily liable for the obligations of that eligible recipient.
In providing funding to an eligible recipient in respect of an eligible project, the Foundation shall not acquire any interest, whether through the acquisition of share capital, a partnership interest or otherwise, in any research infrastructure acquired by the eligible recipient for the project.
Subject to subsection (3), the Foundation may accept conditional or unconditional donations of money.
All money donated to the Foundation, and any income arising from the investment of that money, shall be used by the Foundation in carrying out its objects and purposes in accordance with the terms and conditions of any agreement for provision of funding entered into between a donor and the Foundation.
The Foundation shall not accept a donation of money that is made on the condition that the Foundation use the money or any income arising from the investment of the money for any purpose that is not within the objects and purposes of the Foundation.
Subsection (3) does not apply if the conditions of a donation of money merely restrict or direct the manner of investing the money until it can be used to provide funding to eligible recipients for eligible projects.
The board shall establish investment policies, standards and procedures that a reasonably prudent person would apply in respect of a portfolio of investments to avoid undue risk of loss and obtain a reasonable return, having regard to the Foundation’s obligations and anticipated obligations.
Subject to any conditions of a donation restricting the investment of money donated until it can be used to provide funding to eligible recipients for eligible projects, the Foundation shall invest its funds, and reinvest any income from those funds, in accordance with the investment policies, standards and procedures established by the board.
The Foundation shall not cause any corporation to be incorporated or participate in the incorporation of a corporation or become a partner in a partnership.
Except for the investment of its funds, the Foundation shall not carry on any business for gain or profit and shall not hold or acquire any interest in any corporation or enterprise.
The Foundation shall not borrow money, issue any debt obligations or securities, give any guarantees to secure a debt or other obligation of another person or mortgage, pledge or otherwise encumber property of the Foundation.
The Foundation shall not purchase or accept a donation of real property or immovables.
Subject to subsection (2), the board may delegate to the Chairperson, a committee of directors or an officer of the Foundation any of the powers or rights of the board.
The board shall not delegate any power or right of the board
to enact, amend or repeal by-laws;
to authorize the provision of funding to eligible recipients for eligible projects;
to appoint directors to, or fill vacancies on, a committee of the board;
to appoint officers of the Foundation or fix their remuneration;
to accept donations;
to approve the annual financial statements or reports of the Foundation; or
to submit to the members any matter requiring the approval of the members.
Financial Matters and Audit
The board shall cause an operating budget and a capital budget to be prepared for each fiscal year of the Foundation and shall submit those budgets to the members for consideration at the annual meeting of members.
The board shall cause books of account and other records to be kept and shall establish financial and management controls, information systems and management practices that will ensure that the business and affairs of the Foundation are carried on, and the financial, human and physical resources of the Foundation are managed effectively, efficiently and economically.
The books of account and other records of the Foundation shall be maintained in a way that will ensure that the assets of the Foundation are properly protected and controlled and that its business and affairs are carried on in compliance with this Act and, in particular, in such a way that they will show
descriptions and book values of all investments of the Foundation; and
the eligible recipients who have received, or are about to receive, funding from the Foundation in respect of eligible projects, the nature and extent of the projects and the amount of the funding.
At the first meeting of the members, and in any subsequent fiscal year at the annual meeting, the members shall appoint an auditor for the Foundation for the fiscal year and fix, or authorize the board to fix, the auditor’s remuneration.
The auditor shall be
a natural person who
is a member in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province,
has at least five years experience at a senior level in carrying out audits,
is ordinarily resident in Canada, and
is independent of the board, the directors, the members and the officers of the Foundation; or
a firm of accountants of which the member or employee jointly designated by the board and the firm to conduct the audit of the books and records of the Foundation on behalf of the firm meets the qualifications set out in paragraph (a).
If an auditor is not appointed at the annual general meeting in any fiscal year, the auditor for the preceding fiscal year continues in office until a successor is appointed.
The members may by a special resolution remove an auditor from office.
An auditor ceases to hold office when the auditor
dies;
resigns;
is removed from office under subsection (4); or
no longer meets the requirements under subsection (2).
The members may, at a meeting of the members, appoint an auditor to fill any vacancy in the office of the auditor but, if the members fail to fill the vacancy at that meeting or if no meeting of the members is convened without delay after the vacancy occurs, the board may appoint an auditor.
An auditor appointed to fill a vacancy in the office holds office for the unexpired term of the predecessor in the office.
The auditor shall, within four months after the end of each fiscal year, complete the audit of the books and records of the Foundation for the fiscal year and submit a report of the audit to the members.
The board shall appoint an audit committee consisting of not fewer than three directors and fix the duties and functions of the committee.
In addition to any other duties and functions that it is required to perform, the audit committee shall cause internal audits to be conducted to ensure compliance by the officers and employees of the Foundation with management and information systems and controls established by the board.
Annual Meeting
The board shall call an annual meeting of members not later than six months after the end of each fiscal year of the Foundation for the purpose of
examining the audited financial statements and the report of the auditor on those statements for the preceding fiscal year;
examining the annual report of the Foundation for the preceding fiscal year;
examining the operating budget and the capital budget submitted by the board under subsection 25(1);
considering and confirming, rejecting or amending by-laws made by the board or amendments to or the repeal of by-laws made by the board;
appointing an auditor under subsection 26(1); and
considering any other matter respecting the operations of the Foundation.
Annual Report
The Foundation shall, within five months after the end of each fiscal year, prepare an annual report in both official languages of its activities during the preceding fiscal year and include in the report
its financial statements for the year as approved by the board and the report of the auditor respecting those statements;
a detailed statement of its investment activities during the year, its investment portfolio as at the end of the year and its investment policies, standards and procedures;
a detailed statement of its funding activities;
a statement of its plans for fulfilling its objects and purposes for the next year; and
an evaluation of the overall results achieved by the funding of eligible projects by the Foundation during the year in review, and since the inception of the Foundation.
Before the annual report of the Foundation for a fiscal year is distributed to the public it shall be approved by the board and examined by the members at a meeting of the members.
After the annual report of the Foundation for a fiscal year is approved as required under subsection (2), the report shall be made public in accordance with the by-laws of the Foundation and a copy shall be sent to the Minister who shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.
After it publishes its annual report for a fiscal year, the Foundation shall convene a public meeting at a city in Canada selected by the board to consider the report and other matters relating to the activities of the Foundation during the year.
At least 30 days before the date of a meeting convened under subsection (1) to consider the Foundation’s annual report for a fiscal year, the Foundation shall give notice of the time and place of the meeting in accordance with the by-laws of the Foundation.
Winding-up
If the Foundation is wound up or dissolved, its property remaining after its debts and obligations have been satisfied shall be liquidated and the moneys arising from the liquidation shall be distributed among all the eligible recipients that have received funding from the Foundation and that are, as of the day the distribution begins, still carrying on projects to develop and demonstrate new technologies to promote sustainable development, to be used by them for the purpose of those projects. Each of those eligible recipients shall receive an amount that is the same proportion of the moneys arising from the liquidation as the total funding received by that eligible recipient from the Foundation is of the total of all funding that has been provided by the Foundation to all of those eligible recipients.
Despite subsection (1), the Minister may require the Foundation to repay out of the moneys arising from the liquidation to the Receiver General for credit to the Consolidated Revenue Fund any amount that is so repayable under the terms or conditions on which public moneys were provided to the Foundation.
General
The Official Languages Act applies to the Foundation as if it were a federal institution.
The Foundation shall include in its by-laws provisions
entitling an eligible recipient that has made an application for funding from the Foundation to request the board to make a ruling as to the possible conflict of interest of a director in the consideration or disposal of the application;
establishing procedures to be followed by the board in responding to the request and giving the ruling;
determining the fiscal year of the Foundation;
requiring the creation of advisory committees, including technical advisory committees, and their mandates; and
fixing the remuneration for directors.
Designation and Amendments Consequential on It
The Governor in Council may, by order, designate, for the purposes of this Act, any corporation incorporated under the Canada Not-for-profit Corporations Act.
If an order is made under subsection (1), sections 36 to 39 apply as of the day on which that order is made.
[Amendments]
Coming into Force
This Act comes into force on a day to be fixed by order of the Governor in Council.[Note: Act in force March 22, 2002, see SI/2002-57.]