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SNL2008 CHAPTER R-13.1

RESEARCH AND DEVELOPMENT COUNCIL ACT

Amended:

2009 c18

CHAPTER R-13.1

AN ACT TO ESTABLISH THE NEWFOUNDLAND AND LABRADOR RESEARCH AND DEVELOPMENT COUNCIL

(Assented to December 18, 2008 )

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 Research and Development Council Act .

2008 cR-13.1 s1

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Definitions

        2. In this Act

             (a)  "board" means the board of directors of the council appointed under section 6 ;

             (b)  "chief executive officer" means the chief executive officer of the council appointed under section 12 ;

             (c)  "commercially sensitive information" means information relating to the business affairs or activities of the council or of a third party provided to the council 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)  information respecting a peer or paid scientific or technical review commissioned by the council as part of the evaluation of a proposal or project,

                    (iii)  information respecting a feasibility or technical study undertaken by the council, alone or in conjunction with a partner, or by a third party on the council's behalf,

                    (iv)  information respecting a report on the result of research undertaken by the council, alone or in conjunction with a partner, or by a third party on the council's behalf,

                     (v)  information respecting a survey or report commissioned by the council in a specific area of inquiry or investigation,

                    (vi)  strategic business planning information,

                   (vii)  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 that information may reasonably be derived,

                  (viii)  information respecting positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the council or a third party, or considerations that relate to those negotiations, whether the negotiations are continuing or have been concluded or terminated,

                    (ix)  financial, commercial, scientific or technical information of a third party provided to the council in confidence,

                     (x)  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,

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

                   (xii)  information of a kind similar to that referred to in subparagraphs (i) to (xi);

             (d)  "council" means the research and development council established under section 3;

             (e)  "fund" means the Newfoundland and Labrador Research and Development Fund established under section 19 ;

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

             (g)  "research" means research with respect to science, engineering and technology, social sciences and humanities.

2008 cR-13.1 s2; 2009 c18 s1

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Council established

        3. (1) There is established as a corporation a research and development council for the province.

          (1.1)  The name of the council shall be determined by the Lieutenant-Governor in Council.

             (2)  The council is an agent of the Crown.

             (3)  The Corporations Act does not apply to the council.

             (4)  The provisions of this Act constitute the articles of incorporation of the council.

2008 cR-13.1 s3; 2009 c18 s2

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Objects of the council

        4. The object of the council is to strengthen the focus, quantity, quality and relevance of research and development undertaken in the province and elsewhere for the long-term economic benefit of the province by promoting, stimulating and supporting the effective utilization of science and technology by industry, government, academic institution or other organizations and, for this purpose, to undertake either singly or in conjunction with others, the research, development, surveys, investigations and operations that may, in the opinion of the council, be appropriate.

2008 cR-13.1 s4

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Powers of the council

        5. The council shall have all the powers necessary to enable it to carry out the objects set out in section 4 including, power

             (a)  to licence, franchise, develop or otherwise deal with property that it considers necessary for the conduct of its operations;

             (b)  with the prior approval of the Lieutenant-Governor in Council, to incorporate subsidiaries;

             (c)  to carry on business incidental to its objects, both in the province and extra provincially;

             (d)  to buy, hold, transfer or sell securities, bonds, shares or debentures, both directly and through subsidiaries;

             (e)  to carry on research, development, consultations, investigations and studies for other persons or bodies on the terms and conditions the board may decide;

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

             (g)  to invest the money of the council or on deposit with the council as the board may decide.

2008 cR-13.1 s5

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Board of directors

        6. (1) The council shall be governed by a board of directors comprising not less than 7 and not more than 11 members.

             (2)  The members of the board shall be appointed by the Lieutenant-Governor in Council in a manner that ensures that at least

             (a)  2 persons are not residents of the province;

             (b)  3 persons are from the private sector;

             (c)  3 persons are active researchers as determined by reference to recency of publication, registration of intellectual property or another appropriate indication; and

             (d)  one person is employed by a publicly funded post-secondary educational institution in the province.

             (3)  In addition to the members appointed under subsection (2),

             (a)  the chief executive officer shall be a non-voting member of the board; and

             (b)  an assistant deputy minister of the government with responsibility for innovation shall be appointed by the Lieutenant-Governor in Council as a non-voting member of the board.

2008 cR-13.1 s6

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Tenure of members

        7. (1) Members of the board, whether appointed before or after this Act comes into force, shall be appointed for a term of up to 3 years but may be removed by the Lieutenant-Governor in Council for cause.

             (2)  A member of the board is eligible to be reappointed but a person shall not serve for longer than 6 consecutive years.

             (3)  Subsections (1) and (2) do not apply to the chief executive officer and the assistant deputy minister referred to in paragraph 6 (3)(b).

             (4)  Notwithstanding subsection (2), where the term of office of a member of the board expires he or she continues to be a member of the board until reappointed or replaced.

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

2008 cR-13.1 s7; 2009 c18 s3

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Remuneration of council members

        8. The members of the board shall be paid the salary or other remuneration that the Lieutenant-Governor in Council may determine.

2008 cR-13.1 s8

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Executive of the council

        9. (1) The Lieutenant-Governor in Council shall appoint one of the members of the board as the chairperson of the board and another as the vice-chairperson.

             (2)  The chairperson shall preside at meetings of the board at which he or she is present and shall sign all contracts, agreements and other documents on behalf of the council.

             (3)  The chairperson may delegate his or her powers and duties to the vice-chairperson.

             (4)  The vice-chairperson may exercise the powers and shall perform the duties of the chairperson that may be delegated by the chairperson and, in the absence of the chairperson, may exercise the powers and shall perform the duties of the chairperson.

             (5)  In the absence of the chairperson and the vice-chairperson from a meeting of the council, one of the other voting members may preside at the meeting.

2008 cR-13.1 s9

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Meetings of the board

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

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

2008 cR-13.1 s10

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By-laws

      11. The board may make by-laws

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

             (b)  respecting the participation of members of the board in meetings of the board by telephone or other telecommunications device;

             (c)  establishing a quorum of the board;

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

             (e)  respecting the duties and conduct of the directors and of the officers and employees of the council;

              (f)  respecting the execution of a contract or instrument on behalf of the council;

             (g)  respecting the management and use of the council's property; and

             (h)  generally, for the conduct and management of the affairs of the council.

2008 cR-13.1 s11

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Chief executive officer

      12. (1) The Lieutenant-Governor in Council, after consultation with the council, shall appoint a chief executive officer of the council.

             (2)  The chief executive officer shall be paid the remuneration that the Lieutenant-Governor in Council may determine.

             (3)  The chief executive officer is responsible for the general direction, supervision and control of the activities of the council.

             (4)  During an absence or incapacity of the chief executive officer, the Lieutenant-Governor in Council may appoint an acting chief executive officer who shall perform the duties of the chief executive officer until his or her return or resumption of duties, or until a new chief executive officer is appointed.

2008 cR-13.1 s12

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Appointment of staff

      13. (1) Subject to the approval of the minister, the board may appoint those officers, managers, other staff and employees that it considers necessary and may fix their remuneration and terms of service.

             (2)  A person who is appointed under this section does not, by reason only of the appointment, become an employee of the province.

2008 cR-13.1 s13

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Duty of care

   13.1 A director and officer of the council in exercising his or her powers and discharging his or her duties shall

             (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.

2009 c18 s4

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Borrowing power

      14. (1) Subject to the prior approval of the Lieutenant-Governor in Council, the council may,

             (a)  borrow money for purposes related to the attainment of its objects as set out in section 4 ; and

             (b)  to secure the repayment of money borrowed,

                      (i)  issue bonds, debentures, or other securities of the council,

                     (ii)  execute and deliver mortgages, assignments, conveyances, charges or other encumbrances of and over property title to which is vested in the council, and

                    (iii)  enter into, execute and deliver a trust deed, trust indenture or an agreement with a lender, a trustee acting for the holders of bonds and debentures or other person,

and the money may be borrowed at the rate of interest, and upon the terms and conditions, and the instruments and documents may be issued or executed and delivered in the form, that the Lieutenant-Governor in Council or, where the authority to do so is delegated to the Minister of Finance by the Lieutenant-Governor in Council, the Minister of Finance, approves.

             (2)  The securities of the council may be made payable in a currency approved by the Lieutenant-Governor in Council and expressed in the security.

2008 cR-13.1 s14

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Financial year

      15. The financial year of the council shall be from April 1 in a year to March 31 in the next year.

2008 cR-13.1 s15

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Capital and operating expenses

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

2008 cR-13.1 s16

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Audit and financial statement

      17. (1) The auditor general shall annually audit the financial statement of the council.

             (2)  The financial statement referred to in subsection (1) shall be signed by 2 directors and shall have attached to it the auditor general's report.

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

2008 cR-13.1 s17

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Report of auditor general

      18. (1) Where, during the course of an audit, the auditor general becomes aware of an improper retention or misappropriation of funds by a director, officer, employee or agent of the council, 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.

2008 cR-13.1 s18

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Fund established

      19. (1) The council shall establish a fund in the name of the council, to be called the Newfoundland and Labrador Research and Development Fund, which shall be separate and distinct from the Consolidated Revenue Fund.

             (2)  All money and revenues of the council, including amounts voted by the legislature for the purpose of the council and the proceeds of loans raised by the council, shall be deposited to the credit of the fund and the council shall have full authority to administer the money so deposited for the purposes and objects of this Act.

             (3)  The council shall, on a quarterly basis, report to the Lieutenant-Governor in Council, on activities relating to the fund in the previous quarter providing the information the Lieutenant-Governor in Council may require.

2008 cR-13.1 s19

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Ownership

      20. (1) Unless otherwise directed by the council, the ownership of an invention, work, information or material, regardless of form, including a patent, copyright, technological or industrial design process or trademark acquired or produced by a person that results from or is connected with the person's employment or engagement by the council vests in the council and may be made available to the public under the conditions, on payment of fees or royalties or otherwise, that the council may determine.

             (2)  The council may compensate a person described in subsection (1).

             (3)  The council may enter into an agreement with a person to whom it has given a grant or proposes to give a grant providing for the respective rights, obligations and liabilities of the council and the person with respect to the ownership of an invention, work, information or material, regardless of form, including a patent, copyright, technological or industrial design process or trademark acquired or produced by the person while engaged in a project funded in whole or in part by a grant given by the council.

2008 cR-13.1 s20

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Records of commercially sensitive information

      21. (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, or the head of another public body,

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

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

where the chief executive officer 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 council 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 council 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)  on confirmation of the chief executive officer's decision by the board of directors of the council,

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.

             (6)  Where the auditor general prepares a report which contains information respecting the council, or respecting a third party that was provided to the council by the third party, a draft of the report shall be provided to the chief executive officer, 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 the 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.

             (8)  Notwithstanding the Citizens' Representative Act , the council, 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.

2008 cR-13.1 s21

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Regulations

      22. The Lieutenant-Governor in Council may make regulations to give effect to the purpose of this Act.

2008 cR-13.1 s22

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Disposal of profits

      23. Those balances that the Lieutenant-Governor in Council in consultation with the council considers to be available to the Crown out of the net profits of the council 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 chief executive officer of the council.

2008 cR-13.1 s23

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Labour Relations Act

      24. The Labour Relations Act applies to the council.

2008 cR-13.1 s24

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Public Tender Act

      25. (1) The Public Tender Act does not apply to the council or a subsidiary of the council.

             (2)  Notwithstanding subsection (1), the Lieutenant-Governor in Council may declare that a subsidiary of the council 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 council 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 council and its subsidiaries.

             (4)  The council 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.

2008 cR-13.1 s25

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Intergovernmental agreements

      26. (1) An agreement between the council or a subsidiary and

             (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 analogous to the mandate of the council as expressed in section 4 is not an intergovernmental agreement.

             (2)  Notwithstanding subsection (1), where the Crown in right of Canada or the Crown in right of another province, or another sovereign government, is also a signatory to an agreement, the agreement is an intergovernmental agreement.

             (3)  In this section, the terms

             (a)  "intergovernmental agreement"; and

             (b)  "sovereign government"

have the meaning given them in the Intergovernmental Affairs Act.

2008 cR-13.1 s26

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RSNL1990 cR-13 Rep.

      27. The Research Council Act is repealed.

2008 cR-13.1 s27

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Commencement

      28. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force Dec. 18/09)

2008 cR-13.1 s28