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SNL2018 CHAPTER I-7.1

INNOVATION AND BUSINESS INVESTMENT CORPORATION ACT

 

Amended:

 

CHAPTER I-7.1

AN ACT TO ESTABLISH THE INNOVATION AND BUSINESS INVESTMENT CORPORATION

(Assented to May 31, 2018)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Innovation and Business Investment Corporation Act .

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Definitions

        2. In this Act

             (a)  "board" means the board of directors appointed under section 7;

             (b)  "Business Investment Corporation" means the Business Investment Corporation incorporated under the Business Investment Corporation Act ;

             (c)  "commercially sensitive information" includes

                      (i)  scientific, technical and commercial information, including trade secrets, industrial secrets, market research, market strategies, technological processes, technical solutions, manufacturing processes, operating processes and logistics methods,

                     (ii)  information respecting a peer review, paid scientific review, technical review or other review required by the corporation as part of the evaluation of a proposal or project,

                    (iii)  economic and financial models used for strategic decision making, including the information used as inputs into those models, and

                    (iv)  information similar to the information described in subparagraphs (i) to (iii);

             (d)  "corporation" means the Innovation and Business Investment Corporation incorporated by this Act;

             (e)  "department" means the department presided over by the minister;

             (f)  "director" means a director appointed under section 7;

             (g)  "minister" means the minister appointed under the Executive Council Act to administer this Act; and

             (h)  "research and development council" means the research and development council established under the Research and Development Council Act .

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Corporation

        3. (1) There is established a corporation to be known as the Innovation and Business Investment Corporation.

             (2)  The corporation is the successor in law to the Business Investment Corporation and the research and development council.

             (3)  The corporation is an agent of the Crown.

             (4)  The Corporations Act does not apply to the corporation.

             (5)  The provisions of this Act constitute the articles of incorporation of the corporation.

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Corporation vested

        4. (1) Title to all of the property and assets of the Business Investment Corporation and the research and development council is vested in the corporation.

             (2)  The corporation is charged with and assumes all of the obligations and liabilities of the Business Investment Corporation and the research and development council.

             (3)  An agreement made between the Business Investment Corporation, the research and development council or a subsidiary of the research and development council and another party before this Act comes into force continues in force and is binding on the corporation and the other party to it.

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Objects

        5. The corporation is responsible for making strategic funding investments in innovation and business growth in the province to advance economic development in accordance with the priorities of the government of the province.

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Powers of corporation

        6. (1) The corporation may, in accordance with the programs and policies set by the minister,

             (a)  provide grants, loans or other means of financial support to or provide guarantees on behalf of persons carrying on or proposing to carry on a business or other undertaking in the province;

             (b)  pay or retire existing debts or obligations of a person engaged in a business in circumstances the board considers appropriate in keeping with the objects of the corporation;

             (c)  take for money loaned or otherwise invested, a security of any nature that the board considers advisable;

             (d)  take, or otherwise acquire and hold, the shares, stock, debentures or other securities of a company wherever incorporated and sell or otherwise deal with them;

             (e)  provide grants, loans or other means of financial support to commercial or social enterprises, academic institutions, not-for-profit organizations or individuals undertaking research and innovation activities consistent with the objects of the corporation; and

             (f)  take over the assets of and carry on, either alone or in conjunction with another person, the business or a part of the business of a person indebted to the corporation.

             (2)  The corporation may

             (a)  deposit money or securities with a bank, trustee, trust company or other depository;

             (b)  invest and deal with, in the manner that may be determined by the board, the money of the corporation or on deposit with the corporation that is not immediately required;

             (c)  draw, make, accept, endorse, execute and issue promissory notes, bills of exchange and other negotiable or transferable instruments;

             (d)  appoint agents to act on its behalf for the purpose of this Act and subject to those conditions that the board shall determine; and

             (e)  generally, do all things which the corporation considers necessary, convenient or advisable for or incidental to the exercise of the powers and the discharge of the obligations of the corporation.

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Board

        7. (1) The corporation shall be governed by a board of directors consisting of

             (a)  the deputy minister of the department or his or her designate;

             (b)  2 assistant deputy ministers of the department or their designates; and

             (c)  not less than 2 and not more than 9 other persons appointed by the Lieutenant-Governor in Council.

             (2)  The Lieutenant-Governor in Council shall appoint, from the directors appointed under paragraph (1)(c), one director as the chairperson and another director as the vice-chairperson.

             (3)  A director appointed under paragraph (1)(c) shall be appointed for a term of up to 3 years but may be removed by the Lieutenant-Governor in Council before the expiration of his or her term.

             (4)  A director appointed under paragraph (1)(c) is eligible to be reappointed but shall not serve for longer than 6 consecutive years.

             (5)  Where the term of a director expires, he or she continues to be a director until reappointed or replaced.

             (6)  The exercise of the powers of the board is not impaired by a vacancy on the board.

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Duty of care

        8. The directors and any person who is delegated duties and powers by the corporation or through the by-laws shall, in exercising his or her powers and discharging his or her duties,

             (a)  act honestly and in good faith with a view to the best interests of the corporation; and

             (b)  exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

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Confidentiality of information

        9. The directors and any person who is delegated duties and powers by the corporation or through the by-laws shall keep confidential all matters that come to their knowledge in the exercise of their powers and the discharge of their duties under this Act.

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Meetings of board

      10. (1) The board may conduct its meetings in person, by video conference, by teleconference or by other telecommunication device so long as, at a meeting, all participants may communicate simultaneously and instantaneously.

             (2)  A director participating in a meeting by videoconference, teleconference or other telecommunication device shall be counted as a member present at the meeting for the purpose of establishing a quorum.

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Remuneration of directors

      11. The directors appointed under paragraph 7(1)(c) shall not be paid a salary but may be paid, in accordance with guidelines established by the Lieutenant-Governor in Council,

             (a)  amounts for travel and other expenses incurred in the work of the board; and

             (b)  other remuneration.

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By-laws

      12. (1) The board, with the approval of the minister, may make by-laws

             (a)  respecting the calling of meetings of the board;

             (b)  respecting the participation of directors in meetings of the board by video conference, teleconference or other telecommunication device;

             (c)  establishing a quorum of the board;

             (d)  respecting the conduct of business at meetings of the board, the establishment of committees of the board and the delegation of duties to those committees;

             (e)  respecting voting, including voting by electronic means;

             (f)  respecting the duties and conduct of the directors;

             (g)  respecting the delegation of authority to a person designated by the board, including the conditions under which the authority may be delegated or exercised;

             (h)  respecting conflicts of interest;

              (i)  designating a director for the purpose of section 21;

              (j)  respecting the execution of a contract or instrument on behalf of the corporation; and

             (k)  generally, for the conduct and management of the affairs of the corporation.

             (2)  The by-laws made under this section are not subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act .

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Corporation may enter into agreements

      13. (1) In this section, "agent" means

             (a)  an agent of the Crown in right of Canada ;

             (b)  an agent of the Crown in right of another province; or

             (c)  an agent of another sovereign government,

that has a mandate similar to the objects of the corporation.

             (2)  The corporation in keeping with its objects may work with an agent to carry out or implement programs on its behalf but a contract or agreement binding the corporation in this regard is subject to the approval of the Lieutenant-Governor in Council.

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Actions

      14. Legal proceedings in respect of a right or obligation acquired or incurred by the corporation may be brought by or against it in the name of the corporation.

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Appropriation

      15. (1) The financial requirements of the corporation shall be defrayed out of money appropriated for that purpose by the Legislature or funds derived from a source or agreement under section 13.

             (2)  The balances that the Lieutenant-Governor in Council in consultation with the corporation considers to be available to the Crown shall be paid into the Consolidated Revenue Fund at the intervals and in the manner that the Lieutenant-Governor in Council may direct by notice to the board.

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Financial year

      16. The financial year of the corporation shall be the same as the financial year of the province.

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Budget

      17. The board shall, not later than November 30 in each year, provide to the minister a budget containing the estimated capital and operating expenses of the corporation for its next financial year.

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Report to minister

      18. The corporation shall, not later than September 30 in each year, prepare and submit to the minister a financial statement setting out the assets and liabilities of the corporation, a copy of its audited financial statement and the receipts and expenditures of the corporation for the previous financial year.

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Audit and financial statement

      19. (1) The auditor general shall annually audit the financial statement of the corporation.

             (2)  The financial statement referred to in subsection (1) shall be signed by 2 directors.

             (3)  The financial statement shall be prepared not later than 6 months following the end of the financial year to which it applies.

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Report of auditor general

      20. (1) Where, during the course of an audit, the auditor general becomes aware of an improper retention or misappropriation of funds, or of another activity that may constitute an offence under the Criminal Code , another Act of Canada or an Act of the province, 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.

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Commercially sensitive information

      21. (1) In this section, "designated director" means the director designated by the board under the by-laws to exercise the powers and discharge the duties under this section.

             (2)  Notwithstanding section 7 of the Access to Information and Protection of Privacy Act, 2015 , in addition to the information that shall or may be refused under Part II, Division 2 of that Act, the designated director

             (a)  may refuse to disclose to an applicant under that Act commercially sensitive information of the corporation; and

             (b)  shall refuse to disclose to an applicant under that Act commercially sensitive information of a third party

where the designated director, taking into account sound and fair business practices, 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 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 or the third party.

             (3)  Where an applicant is denied access to information under subsection (2) and a complaint is made to the commissioner under section 42 of the Access to Information and Protection of Privacy Act, 2015 , the commissioner shall, where he or she determines that the information is commercially sensitive information,

             (a)  on receipt of the designated director's certification that he or she has refused to disclose the information for the reasons set out in subsection (2); and

             (b)  on confirmation of the designated director's decision by the board,

uphold the decision of the designated director not to disclose the information.

             (4)  Where a person appeals

             (a)  under subsection 52(1), subsection 53(1) or section 54 of the Access to Information and Protection of Privacy Act, 2015 , from a decision under subsection (2); or

             (b)  under subsection 52(1), subsection 53(1) or section 54 of the Access to Information and Protection of Privacy Act, 2015 , from a refusal by the designated director under subsection (2) to disclose information,

paragraph 59(3)(a) and section 60 of that Act apply to that appeal as if Part II, Division 2 of that Act included the grounds for the refusal to disclose the information set out in subsection (2) of this section.

             (5)  Paragraph 102(3)(a) of the Access to Information and Protection of Privacy Act, 2015 applies to information referred to in subsection (2) 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, Division 2 of that Act.

             (6)  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 designated director.

             (7)  Where the auditor general prepares a report which contains information respecting the corporation, or respecting a third party that was provided to the corporation by the third party, a draft of the report shall be provided to the designated director, 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.

             (8)  In the case of a disagreement between the auditor general and the designated director 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.

             (9)  Notwithstanding the Citizens' Representative Act , the corporation, 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.

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Regulations

      22. The Lieutenant-Governor in Council may make regulations to give effect to the provisions of this Act including regulations for the general administration of this Act.

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Transitional

      23. (1) On the coming into force of this Act and until the first board is appointed under this Act, the board shall consist of

             (a)  not less than 5 and not more than 13 persons who were directors of the board of the Business Investment Corporation or the research and development council immediately before the coming into force of this Act;

             (b)  the deputy minister of the department; and

             (c)  2 assistant deputy ministers of the department.

             (2)  The by-laws of the Business Investment Corporation and the research and development council are, with the necessary changes, the by-laws of the corporation on the coming into force of this Act until the board makes by-laws under this Act.

             (3)  Where the by-laws of the Business Investment Corporation and the by-laws of the research and development council conflict, the by-laws of the Business Investment Corporation prevail.

             (4)  Notwithstanding subsections (1) and (2), where a power or duty was conferred on the Chief Executive Officer of the research and development council under the Research and Development Council Act , by-laws made under that Act or any terms of reference of the board under that Act before the coming into force of this Act, the deputy minister shall exercise that power or discharge that duty on the coming into force of this Act.

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SNL2015 cA-1.2
Amdt.

      24. (1) Schedule A of the Access to Information and Protection of Privacy Act, 2015 is amended by adding immediately after paragraph (j) the following:

          (j.1)  section 21 of the Innovation and Business Investment Corporation Act ;

             (2)  Paragraph (p) of Schedule A of the Act is repealed.

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SNL2001 cC-14.1 Amdt.

      25. The Schedule to the Citizens' Representative Act is amended by

             (a)  deleting the reference "Business Investment Corporation"; and

             (b)  adding immediately before the reference "Insurance Adjusters, Agents and Brokers Appeal Board" the reference "Innovation and Business Investment Corporation".

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SNL2016 cI-2.1 Amdt.

      26. The Schedule to the Independent Appointments Commission Act is amended by

             (a)  deleting the statutory appointment reference "Business Investment Corporation Act, subsection 7(1)";

             (b)  adding immediately before the statutory appointment reference "Labour Relations Act , section 6" the statutory appointment reference "Innovation and Business Investment Corporation Act, paragraph 7(1)(c)"; and

             (c)  deleting the statutory appointment reference "Research and Development Council Act , subsections 6(2) and 12(1)".

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SNL2014 cO-9 Amdt.

      27. The Schedule to the Other Post-Employment Benefits Eligibility Modification Act is amended by deleting the reference "Research and Development Council".

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SNL2016 cP-41.001 Amdt.

      28. Subsection 5(1) of the Public Procurement Act is repealed and the following substituted:

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Application

        5. (1) This Act applies to procurement by public bodies, and with respect to the corporation established under the Energy Corporation Act , this Act applies to that corporation and the subsidiaries of it except as provided in that Act.

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NLR 81/16 Amdt.

      29. The Schedule to the Public Sector Compensation Transparency Regulations under the Public Sector Compensation Transparency Act is amended by

             (a)  adding immediately before the reference "Labour Relations Board" the reference "Innovation and Business Investment Corporation"; and

             (b)  by deleting the reference "Research & Development Corporation".

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Repeal

      30. The Business Investment Corporation Act and the Research and Development Council Act are repealed.

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