Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
SNL2007 cE-11.01
1. (1) Section 2 of the Energy Corporation Act is amended by adding immediately after paragraph
(b) the following:
(b.1) "commercially sensitive information"
means information relating to the business affairs or activities of the corporation
or a subsidiary, or of a third party provided to the corporation or the
subsidiary by the third party, and includes
(i) scientific or technical information, including
trade secrets, industrial secrets, technological processes, technical solutions,
manufacturing processes, operating processes and logistics methods,
(ii) strategic business planning information,
(iii) financial or commercial information, including
financial statements, details respecting revenues, costs and commercial
agreements and arrangements respecting individual business activities,
investments, operations or projects and from which such information may reasonably
be derived,
(iv) information respecting positions, plans,
procedures, criteria or instructions developed for the purpose of contractual
or other negotiations by or on behalf of the corporation, a subsidiary or a
third party, or considerations that relate to those negotiations, whether the
negotiations are continuing or have been concluded or terminated,
(v) financial, commercial, scientific or technical
information of a third party provided to the corporation or a subsidiary in
confidence,
(vi) information respecting legal arrangements or
agreements, including copies of the agreement or arrangements, which relate to
the nature or structure of partnerships, joint ventures, or other joint
business investments or activities,
(vii) economic and financial models used for
strategic decision making, including the information used as inputs into those
models, and
(viii) commercial information of a kind similar to
that referred to in subparagraphs (i) to (vii);
(2) Section 2 of the Act is amended by deleting
the word "and" at the end of paragraph (h) and adding immediately
after that paragraph the following:
(h.1) "public body" means a public body as
defined in the Access to Information and
Protection of Privacy Act;
(h.2) "record" means a record as defined
in the Access to Information and
Protection of Privacy Act;
(h.3) "subsidiary" means a subsidiary of the
corporation except Newfoundland and Labrador Hydro; and
2. The Act is amended by adding immediately after
section 5 the following:
Annual meeting
5.1 The
corporation shall hold an annual meeting in the province, which shall be open
to the general public, within 60 days of the publication by the minister of the
annual report under subsection 5.2(3).
Annual report
5.2 (1) The
corporation shall, each year, no later than April 30, prepare and submit to the
minister a report on the activities of the corporation and its subsidiaries, including
Newfoundland and Labrador Hydro, in the previous fiscal year containing
(a) an audited consolidated financial statement of
the corporation setting out the assets and liabilities of the corporation as of
the end of the immediately preceding financial year and the results of its
operations for the financial year;
(b) a report by the board giving an account of the
activities of the corporation during the immediately preceding financial year
and setting out other matters that may appear to it to be of a public interest
in relation to the affairs or the activities of the corporation; and
(c) a report of each subsidiary giving an account
of its activities during the immediately preceding financial year and including
information that it believes may be of public interest relating to its
activities but the report shall not be required to include commercially
sensitive information.
(2) The minister may, on receipt of a report
required under subsection (1), direct the corporation to provide additional
information on its activities or the activities of one or more of its
subsidiaries and the corporation shall provide the information in the form and
detail and at the time the minister may direct.
(3) The report required under subsection (1) shall
be made public by the minister by
(a) presenting the report to the House of
Assembly; and
(b) other effective means, including
electronically.
(4) Section 19.1 of the House of Assembly Act applies to a report required under subsection
(1) as if the report were a report of an officer of the House of Assembly.
Form and content
of reports
5.3 The
report required under section 5.2 shall be consistent in form and content with
annual reports prepared by publicly traded companies.
Records of commercially
sensitive information
5.4 (1) Notwithstanding
section 6 of the Access to Information
and Protection of Privacy Act, in addition to the information that shall or
may be refused under Part III of that Act, the chief executive officer of the
corporation or a subsidiary, or the head of another public body,
(a) may refuse to disclose to an applicant under
that Act commercially sensitive information of the corporation or the subsidiary;
and
(b) shall refuse to disclose to an applicant under
that Act commercially sensitive information of a third party
where the chief executive officer of the
corporation or the subsidiary to which the requested information relates reasonably
believes
(c) that the disclosure of the information may
(i) harm the competitive position of,
(ii) interfere with the negotiating position of, or
(iii) result in financial loss or harm to
the corporation, the subsidiary or the third
party; or
(d) that information similar to the information
requested to be disclosed
(i) is treated consistently in a confidential
manner by the third party, or
(ii) is customarily not provided to competitors by
the corporation, the subsidiary or the third party.
(2) Where an applicant is denied access to
information under subsection (1) and a request to review that decision is made
to the commissioner under section 43 of the Access
to Information and Protection of Privacy Act, the commissioner shall, where
he or she determines that the information is commercially sensitive information,
(a) on receipt of the chief executive officer's
certification that he or she has refused to disclose the information for the reasons
set out in subsection (1); and
(b) confirmation of the chief executive officer's
decision by the board of directors of the corporation or subsidiary,
uphold the decision of the chief executive
officer or head of another public body not to disclose the information.
(3) Where a person appeals,
(a) under subsection 60(1) of the Access to Information and Protection of
Privacy Act, from a decision under subsection (1); or
(b) under subsection 43(3) of the Access to Information and Protection of Privacy
Act, from a refusal by a chief executive officer under subsection (1) to
disclose information,
paragraph 62(3)(a) and section 63 of that
Act apply to that appeal as if Part III of that Act included the grounds for
the refusal to disclose the information set out in subsection (1) of this Act.
(4) Paragraph 56(3)(a) of the Access to Information and Protection of Privacy Act applies to
information referred to in subsection (1) of this section as if the information
was information that a head of a public body is authorized or required to
refuse to disclose under Part II or III of that Act.
(5) Notwithstanding section 21 of the Auditor General Act, a person to whom
that section applies shall not disclose, directly or indirectly, commercially
sensitive information that comes to his or her knowledge in the course of his
or her employment or duties under that Act and shall not communicate those
matters to another person, including in a report required under that Act or
another Act, without the prior written consent of the chief executive officer
of the corporation or subsidiary from whom the information was obtained.
(6) Where the auditor general prepares a report
which contains information respecting the corporation or a subsidiary, or
respecting a third party that was provided to the corporation or subsidiary by
the third party, a draft of the report shall be provided to the chief executive
officer of the corporation or subsidiary, and he or she shall have reasonable
time to inform the auditor general whether or not in his or her opinion the
draft contains commercially sensitive information.
(7) In the case of a disagreement between the
auditor general and a chief executive officer respecting whether information in
a draft report is commercially sensitive information, the auditor general shall
remove the information from the report and include that information in a separate
report which shall be provided to the Lieutenant-Governor in Council in
confidence as if it were a report to which section 5.5 applied.
(8) Notwithstanding the Citizens' Representative Act, the corporation, a subsidiary, another
public body, or an officer, member or employee of one of them is not required
to provide commercially sensitive information, in any form, to the citizens'
representative in the context of an investigation of a complaint under that
Act.
Report of auditor
general
5.5 (1) Where,
(a) during the course of an audit;
(b) as a result of a review of an audit report
prepared by another auditor; or
(c) as a result of an internal audit procedure,
the auditor general becomes aware of an
improper retention or misappropriation of funds by a director, officer,
employee or agent of the corporation or a subsidiary, or of another activity
that may constitute an offence under the Criminal
Code or an Act of the province or of Canada, the auditor general shall,
where the report includes commercially sensitive information, notwithstanding
the Auditor General Act, provide the
report to the Lieutenant-Governor in Council in confidence.
(2) In addition to the report required under
subsection (1), the auditor general shall immediately provide a report to the
House of Assembly that includes a general description, excluding commercially
sensitive information, of the activity that is the subject of the report under
subsection (1) and the dates on which those activities were reported to the Lieutenant-Governor
in Council.
(3) Section 19.1 of the House of Assembly Act applies to a report under subsection (2) as
if it were a report of an officer of the House of Assembly.
3. Subsection 14(3) of the Act is repealed.
4. The Act is amended by adding immediately after
section 14 the following:
Subsidiaries
14.1 (1) Except
with the prior approval of the Lieutenant-Governor in Council, the corporation
shall not organize or maintain a subsidiary of the corporation or purchase,
sell, otherwise dispose of or deal in shares of a subsidiary of the corporation
or of another company, and where the approval is given, the corporation may do
the things referred to in this subsection only where it is expressly mentioned
in and to the extent provided by the approval.
(2) The objects of a subsidiary shall be some or
all of the objects of the corporation under section 5.
(3) A subsidiary shall not engage in an activity
that, were it to be undertaken by the corporation, would require the prior
approval of the Lieutenant-Governor in Council, including the creation of a subsidiary,
without the prior approval of the corporation.
(4) The provisions of this Act, with the necessary
changes, shall be considered to form the articles of incorporation, or a part
of them, of a subsidiary.
(5) A subsidiary is not an agent of the Crown
unless it is designated as an agent by the Lieutenant-Governor in Council when
the Lieutenant-Governor in Council gives its approval of the incorporation of
the subsidiary under subsection (1).
(6) Where a subsidiary is not designated as an
agent of the Crown under subsection (5),
(a) the property of the subsidiary is not the
property of the Crown or an agent of the Crown;
(b) the debts and obligations of the subsidiary are
not the debts and obligations of the Crown or an agent of the Crown;
(c) the subsidiary shall be incorporated under the
Corporations Act unless the approval
provided under subsection (1) permits incorporation under the laws of another jurisdiction;
(d) the board of directors of the subsidiary shall
be composed of not less than 5 and not more than 10 members;
(e) the board of directors of the subsidiary shall
be composed of at least the following number of independent directors:
(i) where the board has 5 or 6 members, 2
independent directors,
(ii) where the board has 7 or 8 members, 3
independent directors, and
(iii) where the board has 9 or 10 members, 4
independent directors; and
(f) the chief executive officer of the subsidiary
shall be appointed by the board of directors of the subsidiary.
(7) In paragraph (6)(e), "independent
director" means a person who is not a member of the board of directors of
the corporation or another subsidiary or an employee or officer of the
corporation, another subsidiary or the Crown.
(8) Subsection (6) does not apply to
(a) Churchill
Falls (Labrador) Corporation Limited;
(b) Lower Churchill Development Corporation
Limited;
(c) Gull Island Power Corporation; or
(d) Twin Falls Power Corporation.
5. The Act is amended by adding immediately after
section 17 the following:
Public Tender Act
17.1
(1) The
Public Tender Act does not apply to
the corporation or a subsidiary.
(2) Notwithstanding subsection (1), the
Lieutenant-Governor in Council may declare that a subsidiary is subject to the Public Tender Act and in that event the
Act applies to the subsidiary.
(3) Subject to the prior approval of the
Lieutenant-Governor in Council, the corporation shall develop and adopt
procurement principles that follow best industry practices for procurement and
contracting, including transparent supplier development, monitoring and reporting
and those principles shall apply to the corporation and its subsidiaries.
(4) The corporation and its subsidiaries shall
report to the minister on their procurement activities and shall include a
summary of contracts entered into and the identities of suppliers to whom the
contracts have been awarded every 6 months.
(5) A summary of the procurement principles
adopted under subsection (3) and the reports required under subsection (4)
shall be made public by the minister by
(a) presenting them to the House of Assembly; and
(b) other effective means, including
electronically.
(6) Section 19.1 of the House of Assembly Act applies to a summary required under
subsection (5) as if the summary were a report of an officer of the House of
Assembly.
Intergovernmental
agreements
17.2 (1) An
agreement between the corporation or a subsidiary, including Newfoundland and
Labrador Hydro, and an agent of the Crown in right of Canada, or of the Crown
in right of another province or of another sovereign government is not an
intergovernmental agreement.
(2) In this section, the terms
(a) "intergovernmental agreement"; and
(b) "sovereign government"
have the meaning given them in the Intergovernmental Affairs Act.
(3) An intergovernmental agreement entered into by
the corporation or a subsidiary, including Newfoundland and Labrador Hydro, before
the coming into force of this section is considered binding on the corporation
or a subsidiary notwithstanding the agreement may not have been signed by the
minister responsible for intergovernmental affairs or his or her designate as
required by section 7 of the Intergovernmental
Affairs Act.
6. Section 19 of the Act is amended by adding
immediately after the word "corporation" where it twice occurs the
words "or a subsidiary".
7. Section 25 of the Act is amended by adding
immediately after the word "corporation" where it twice occurs the
words "or a subsidiary".
8. Section 31 of the Act is repealed and the
following substituted:
Audit and financial
statement
31. (1) The
board shall annually appoint an auditor who shall annually audit the financial
statement of the corporation.
(2) The financial statement referred to in
subsection (1) shall be signed by 2 directors and shall have attached to it the
auditor's report.
(3) The remuneration of the auditors referred to
in subsection (1) shall be fixed annually by the board and shall be paid by the
corporation out of its funds.
(4) The report of the auditors shall state whether
the financial statements present fairly the financial position of the
corporation and the results of its operations for the period under review and
whether the financial statements were prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
period.
(5) The Lieutenant-Governor in Council may, by
order, designate or appoint other auditors for carrying out the specific audit
of the corporation's accounts and business that the Lieutenant-Governor in Council
may specify in the order, and the auditor general may conduct the additional
examination and investigation of the records and operations of the corporation
that he or she considers necessary.
(6) For the purposes of an audit, examination or
investigation conducted under subsection (5), the person designated or
appointed by the Lieutenant-Governor in Council, or the auditor general, may
request and shall be supplied by the board with all books, vouchers, records,
schedules, working papers and other documentation which he or she considers
necessary.
(7) This section applies, with the necessary
changes, to a subsidiary.
(8) Subsection 5.4(5) and section 5.5 apply to an
audit conducted under this section by an auditor who is not the auditor general
as if he or she were the auditor general.
ŠEarl G. Tucker,
Queen's Printer