This is an official version.
Copyright © 2000: Queens Printer,
Statutes of Newfoundland 1991
AN ACT TO ESTABLISH THE ST. JOHN'S
(Assented to December 11, 1991)
1. Short title
3. Private Act effect
5. Head office
7. Nominating committee
11. Income distribution
13. Common trust fund
15. Transfers to foundation
16. Power of court to change trusts
18. Distribution outside city
20. Service of documents
21. Appointment of officers and employees
22. Future donations
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the St. John's Centennial Foundation Act.
2. In this Act
(a) "board" means the board of directors of the foundation appointed under section 8;
(b) "city" means the City of St. John's as described in The City of St. John's Act;
(c) "committee" means the nominating committee appointed under section 7;
(d) "custodian" means a custodian appointed under subsection 12(1);
(e) "foundation" means the St. John's Centennial Foundation established under subsection 4(1);
(f) "investment" means an investment permitted under subsection 15(1) of The Financial Administration Act, 1973; and
(g) "investment-approved corporation" means an investment approved corporation as defined by subsection 15(2) of The Financial Administration Act, 1973.
Private Act effect
3. Notwithstanding that it is enacted as a public Act, no provision of this Act affects the rights of a person except only as mentioned or referred to in this Act.
4. (1) The St. John's Centennial Foundation is established as a corporation under this Act.
(2) The foundation shall consist of the members of the board.
5. The head office of the foundation shall be located in the city.
6. The objects of the foundation are to use the donations entrusted to it for charitable purposes that will, in the sole discretion of the board, best promote the well being of men, women and children who are primarily the inhabitants of the city regardless of race, colour or creed, including
(a) providing care for needy men, women and children and in particular for the sick, aged, destitute and helpless;
(b) promoting the improvement of underprivileged, disadvantaged or delinquent persons;
(c) promoting educational, scientific or medical advancement and research;
(d) promoting recreational activities;
(e) promoting the conservation of human, heritage or natural resources; and
(f) providing for cultural, educational and other charitable purposes.
7. (1) There is established a nominating committee consisting of
(a) the mayor of the city who shall be chairperson of the committee;
(b) the Registrar of the Supreme Court of Newfoundland;
(c) the President of Memorial University of Newfoundland;
(d) the chairperson of the Newfoundland and Labrador Arts Council; and
(e) the President of the St. John's Board of Trade.
(2) The committee shall meet annually or at the call of the chairperson to appoint members to the board.
(3) Three of the members of the committee constitute a quorum and each member of the committee shall have 1 vote.
(4) The committee shall conduct business by a resolution of a majority of its members attending a meeting.
8. (1) The committee shall appoint at least 5 and not more than 8 persons as members of the board.
(2) The members appointed to the board under subsection (1) shall be residents of or employed within the city.
(3) The mayor of the city shall be a member of the board by virtue of his or her office.
(4) The terms of office of members appointed under subsection (1) shall be 3 years and each of those members may be reappointed for a total of 3 terms.
(5) Notwithstanding subsection (4), of the members first appointed under subsection (1)
(a) 1/3 or as near as may be possible shall be appointed for a term of 1 year;
(b) 1/3 or as near as may be possible shall be appointed for a term of 2 years; and
(c) the remaining members shall be appointed for a term of 3 years, and
thereafter each member of the board shall be appointed for a term of 3 years.
(6) Five members of the board constitute a quorum for the transaction of business.
(7) The board shall elect a chairperson from among its members.
(8) The members of the board shall not be entitled to remuneration for their services.
(9) A member of the board appointed to replace another whose term has not been completed shall be appointed for the remainder of the previous member's term.
(10) Members of the board are not in their individual capacities liable for a debt or liability of the foundation.
9. The foundation may
(a) receive donations and own, hold, control, administer and manage property of every kind and description and wherever situated and refuse to accept donations;
(b) accept and carry into effect trusts consistent with the objects of the foundation;
(c) assist institutions, organizations, agencies and bodies engaged in activities consistent with the objects of the foundation;
(d) convert property received or held by the foundation into another form provided that the conversion does not contravene an express term of the instrument which conferred the donation and for the purpose of that conversion may sell, dispose of, assign, transfer, lease or exchange the property;
(e) retain as an authorized investment all or part of property donated to the foundation for a length of time whether or not that property is in a form of investment authorized by law for the investment of trust funds;
(f) lease lands held by the foundation;
(g) invest funds and property entrusted to it in securities and properties subject at all times to the specific directions of a donor or a judge of the Trial Division;
(h) abandon property held by the foundation which the board considers inadvisable to retain;
(i) entrust to 1 or more custodians the custody and management of all or a portion of the property held by the foundation as the board in its discretion directs;
(j) enter into agreements with custodians and their agents regarding the custody and management of property;
(k) execute all transfers of property; and
(l) have all the powers, privileges and immunities vested in a corporation by law.
10. (1) The board may, by special resolution, make, amend and repeal by-laws consistent with this Act to provide for the management of the property and affairs of the foundation.
(2) The board may also make by-laws under subsection (1) respecting the suspension, termination and further qualification of members of the foundation.
(3) Each member of the board shall have 1 vote.
11. (1) The board may use and distribute a portion or all of the income of the foundation for purposes consistent with the objects and powers of the foundation.
(2) Notwithstanding subsection (1), in deciding the manner in which income shall be used or applied the board shall be governed by a particular wish that is expressed by a donor in the instrument by which property is donated to the foundation.
(3) Where, following the death of a donor or the winding up, voluntary or otherwise, of a corporate donor, conditions make it no longer possible, practical or wise for the board to carry out the express wish of the donor, the board may use and apply the funds for purposes which the board considers closest to the original intent and purpose of the donor.
(4) This section is a condition of the foundation accepting a gift and every donor is considered to have assented to the terms of this section.
(5) The board may specifically waive the application of subsection (4) at the time of acceptance of a gift.
12. (1) Where the board receives a donation, the board shall appoint, subject to a trust imposed by the donor, 1 or more custodians who shall be investment-approved corporations.
(2) The board may revoke an appointment made under subsection (1) and substitute another custodian.
(3) A custodian shall
(a) have custody and management of all property entrusted to it by the foundation;
(b) make all investments, reinvestments, conversions, sales or dispositions of that property;
(c) observe, perform and effect all terms, provisions and conditions expressed in an instrument creating a trust which the custodian manages;
(d) observe and effect all directions regarding property entrusted to the custodian by the board under this Act; and
(e) at the written direction of the board, distribute money in its possession.
(4) The custodian shall be directed by the board and this Act.
Common trust fund
13. (1) The board may establish a consolidated trust fund in which property received by the foundation from separate donations is combined in order to facilitate the investment and administration of that property.
(2) The board may determine with respect to the consolidated trust fund
(a) the property that may be included in that fund;
(b) the manner of operating that fund;
(c) the distribution of income of that fund; and
(d) the method of valuing the property transferred to or retained in that fund.
(3) A direction in writing by a donor that property included in a donation not be included in the consolidated trust fund is binding upon the board.
14. (1) Any form of words shall constitute a donation under this Act where the donor indicates an intention to contribute presently or prospectively into a fund of the general nature indicated by this Act.
(2) This Act shall be liberally construed to give effect to charitable gifts within the objects of the foundation.
Transfers to foundation
15. (1) A person, firm, corporation or association, including a board of management of a public body or institution consisting of appointed members or directors holding property in trust for
(a) a charitable purpose;
(b) the benefit of a charitable institution; or
(c) a purpose similar to the objects of the foundation
wishing to be discharged from the administration of that trust may apply to a judge of the Trial Division upon notice to the foundation for an order that the property subject to that trust be transferred to the foundation.
(2) Following an application under subsection (1) a judge may order that a trust be transferred to the foundation.
(3) A trust transferred to the foundation under this section shall be subject to the terms of the original trust and other terms that a judge may order.
(4) Where a judge orders a transfer of a trust under subsection (2), a trustee who complies with that order is fully relieved and discharged of all further responsibility respecting the trust property transferred by that order.
Power of court to change trusts
16. (1) Where
(a) the object of a specific charitable trust held by the foundation has ceased to exist;
(b) the trust has become substantially incapable of performance; or
(c) the trust cannot be administered,
and if the foundation cannot vary the terms of the specific trust to provide for alternative objects by agreement with the donor or the donor's personal representatives within a reasonable time as determined by a resolution of the board, the foundation, as trustee, by a further resolution of the board may use the property held on that trust in the manner and for charitable purposes that other donations may be made to the foundation under this Act.
(2) The decisions of the board under subsection (1) are binding on all persons affected.
(3) A person affected by a decision under this section upon proper notice to the foundation and within 60 days after the decision was made, may apply to a judge of the Trial Division for an order to revoke or alter the resolution of the board and that judge may make an order that he or she considers reasonable in the circumstances.
17. The rules against perpetuities and accumulations do not apply to donations made to and trusts held by the foundation.
Distribution outside city
18. Where property is donated to the foundation and the donor indicates in the instrument which donates the property a desire that all or part of the capital or income be used for charitable purposes outside the city, the board may accept the donation and give effect to these desires consistent with the objects of the foundation.
19. (1) An audit of the financial affairs of the foundation shall be made once each fiscal year by an independent auditor appointed by the board.
(2) The auditor shall publish in a newspaper having general circulation in the city, at the expense of the foundation, a statement indicating the availability of the completed audited financial statements of the foundation and the times at which it shall be available for inspection.
(3) The board or a custodian appointed under section 12 shall, upon request, give the auditor full information and permit the auditor to make all necessary inspections to enable the performance of the audit.
Service of documents
20. A document may be served on the foundation by serving a member of the board or an officer of the foundation in person.
Appointment of officers and employees
21. (1) The board may appoint officers and engage employees including an executive director, treasurer, secretary, legal advisor or other officers and employees at salaries or for remuneration that the board considers necessary.
(2) The board may prescribe the duties, powers, authority, tenure of office or period of appointment of those appointed or engaged under subsection (1).
(3) No salary or remuneration shall be paid unless first approved by the board.
(4) The reasonable administrative expenses incurred by the board may be charged against all trusts in an equitable manner.
22. Where a donation of property is made to the foundation in trust to take effect in the future, the board may accept and exercise powers of appointment, settlement or distribution respecting all or part of the income derived from the property until the donation takes effect.
©Earl G. Tucker, Queen's Printer