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In connection with the continuing COVID-19 pandemic, on March 30, 2020, the Government of Ontario issued an order (retroactive to March 17, 2020) under the Emergency Management and Civil Protection Act (the “Order”) temporarily suspending and replacing certain sections of the Business Corporations Act (Ontario) (“OBCA”) and the Corporations Act (Ontario) (“CA”). These amendments provide corporations with greater flexibility as to when they must hold their annual shareholder and/or member meetings (“Annual Meetings”), as well as how any meetings of shareholders, members and/or directors may be duly held by electronic means.
A. Extension of meetings
Under the OBCA and the CA, a corporation is required to hold an Annual Meeting within 15 months of its preceding Annual Meeting. During the period of the declared emergency (the “Emergency Period”), the Order extends this deadline to:
- if the last day the Annual Meeting is required to be held falls within the Emergency Period, the 90th day following the end of the Emergency Period; or
- if the last day the Annual Meeting is required to be held falls within 30 days following the end of the Emergency Period, the meeting can be held no later than the 120th day following the end of the Emergency Period.
Under the CA, insurance corporations are required to hold an Annual Meeting within the first three months of every year. The Order extends this deadline and allows for Annual Meetings to be held up to 90 days following the termination date of the Emergency Period.
B. Virtual / electronic meetings
Under the OBCA and the CA, meetings of shareholders, members and/or directors were generally only able to be held by telephonic or electronic means if expressly provided for by a corporation’s constating documents (such as its letters patent, articles or by-laws). Pursuant to the Order, all such meetings may now be held by telephonic or electronic means, despite the corporation’s constating documents.
C. CBCA corporations
Despite the additional flexibility provided to Ontario corporations under the Order, similar measures have not yet been adopted federally. Corporations incorporated under the Canada Business Corporations Act (“CBCA”) are urged to review their constating documents to ensure they are permitted to proceed by way of electronic or virtual meetings. Furthermore, and subject to further guidance from the Federal Government, court approval is likely necessary for reporting issuers looking to extend or delay their Annual Meetings.
Miller Thomson is closely monitoring the situation around the COVID-19 pandemic to ensure that we provide our clients with the appropriate support in this rapidly changing environment. For additional information, please see our COVID-19 resources page.
This publication is intended to be a summary of the applicable legal considerations and not legal advice for any specific corporation. Issuers are encouraged to contact a member of Miller Thomson’s Corporate Law Group for specific advice.