This is an official version. Copyright © 2007: Queen's Printer, Important Information
Statutes of Newfoundland and Labrador 2007 AN ACT TO ESTABLISH AN ENERGY CORPORATION FOR THE
PROVINCE (Assented to Analysis 1. Short title 2. Definitions 3. Corporation established 4. Application of the Corporations Act 5. Objects of the corporation 6. Board of directors 7. Chairperson and CEO 8. Minutes 9. Service contract 10. By-laws 11. Affixing seal 12. Appointment of staff 13. Subsidiaries of corporation 14. General powers 15. Acts applicable 16. Application of Acts 17. Application of Acts 18. Borrowing power 19. Guarantee of loans 20. Manner and form of guarantee 21. Guarantee of payment 22. Guarantee of repayment 23. Short-term loans 24. Agreements 25. Performance guarantee 26. Loans by government 27. Performance under guarantee 28. Total amount of loan 29. Financial year 30. Capital and operating expenses 31. Audit and financial statement 32. Fund established 33. Financial provisions to have full effect 34. Actions 35. Offences 36. Transitional 37. Commencement 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 Energy Corporation
Act. Definitions 2. In
this Act (a) "board" means the board of directors
of the corporation; (b) "chairperson" means the chairperson
of the board; (c) "corporation" means the energy corporation
established by this Act; (d) "director" means a director of the
board; (e) "land" means real property of every
kind, and includes tenements, hereditaments, and appurtenances, leaseholds, and
an estate, term, easement, right or interest in, to, over, under or affecting
land, including rights-of-way, and waters, water rights, water powers and water
privileges; (f) "minister" means the minister
appointed under the Executive Council Act
to administer this Act; (g) "person" includes a natural person, a
corporation, another entity recognized by law, and the heirs, executors, administrators
or other legal representatives of a person; (h) "power" includes electrical power,
however generated and electrical energy; and (i) "works" means all land, property,
buildings, plants, machinery, installations, materials, dams, canals, devices,
fittings, apparatus, appliances, and equipment made, established or acquired or
utilized, or useful for the exercise of the powers of the corporation and the
attainment of its objects. Corporation established 3. (1) There is established an energy corporation for the province. (2) The name of the corporation shall be
determined by the Lieutenant-Governor in Council. (3) The corporation is considered to have issued
and outstanding shares which are vested in the Crown. (4) The head office of the corporation shall be at
(5) The corporation is an agent of the Crown. (6) Notwithstanding that the corporation is an
agent of the Crown, the corporation may, for the purpose of this Act and
subject to conditions it considers necessary, (a) acquire from the Crown in right of (b) enter into contracts with the Crown in right
of (c) enter into a partnership, joint venture,
equity arrangement or other arrangement with the Crown, an agent of the Crown
or another person; and (d) appoint agents to act on its behalf. (7) Property of the corporation is the property of
the Crown, but title to it is vested in the name of the corporation. (8) A director or a person employed by the corporation does not become, by reason of that office or employment only, an officer or employee of the Crown. Application of
the Corporations Act 4. (1) The Corporations Act, except for section 27, paragraphs 31(a) to (e), sections 32, 76, 81, 167, 169, 172, 173, 177 and 178, subsections 184(3) and (4), section 188, subsections 189(1) and (2), paragraphs 189(3)(a), (d), (h) and (j), sections 200, 201, 203 to 209, subsections 245(1), (3) and (4), sections 273 and 275, subsections 276(1), (3), (4) and (5) and section 277, does not apply to the corporation. (2) A requirement in a section referred to in subsection (1) to register or to provide information to the registrar does not apply to the corporation. (3) Where there is a conflict between a provision referred to in subsection (1) and this Act, this Act prevails. (4) The provisions of this Act constitute the
articles of the corporation. Objects of the corporation 5. (1) The objects of the corporation are to invest in, engage in, and carry out activities in all areas of the energy sector in the province and elsewhere, including, (a) the development, generation, production, transmission, distribution, delivery, supply, sale, export, purchase and use of power from wind, water, steam, gas, coal, oil, hydrogen or other products used or useful in the production of power; (b) the exploration for, development, production, refining, marketing and transportation of hydrocarbons and products from hydrocarbons; (c) the manufacture, production, distribution and sale of energy related products and services; and (d) research and development. (2) Notwithstanding subsection (1), the corporation may engage in those other activities that the Lieutenant-Governor in Council may approve. Board of
directors 6. (1) For
the exercise and discharge of the powers and duties of the corporation, there
shall be a board of directors comprised of not less than 5 and not more than 14
persons. (2) The directors shall be appointed by the Lieutenant-Governor
in Council, shall hold office during pleasure only and are eligible for
reappointment. (3) Except where otherwise prescribed under this
Act, the corporation may exercise its powers by a resolution of the board. (4) The directors shall be paid the salary or
other remuneration that the Lieutenant-Governor in Council may determine, and
the salary or remuneration together with all reimbursable expenses shall be
paid by the corporation out of its funds. (5) Where a vacancy occurs on the board because of
the death, illness, resignation, removal of a member, or for another reason,
the Lieutenant-Governor in Council may appoint a person to fill the vacancy. (6) Exercise of the powers of the corporation is
not impaired because of a vacancy on the board. (7) Until the board makes other provision under
section 10, a majority of the directors who
then hold office constitutes a quorum of the board. (8) Notwithstanding that it is afterward
discovered that there was some defect in the appointment or qualification of a
person purporting to be a director, all acts done by the corporation and the
board shall be as valid as if that defect had not existed. Chairperson and
CEO 7. (1) There
shall be a chairperson of the board to be appointed by the Lieutenant-Governor
in Council from among the directors. (2) The chairperson holds office for the period
and under the terms and conditions that may be prescribed by the Lieutenant-Governor
in Council or in an agreement made under section 9,
and shall vacate office in accordance with those terms and conditions. (3) There shall be a chief executive officer of
the corporation, to be appointed by the Lieutenant-Governor in Council, who
shall, subject to the terms of appointment that may be established by the Lieutenant-Governor
in Council, or in an agreement made under section 9
and, subject to the directions of the board, be charged with the general direction,
supervision and control of the business of the board and the corporation. (4) The same person may not hold the offices of chairperson and chief executive officer simultaneously. (5) During the incapacity or absence of the chairperson, one of the other directors, other than the chief executive officer, where the chief executive officer is a director, elected by the board for the purpose shall act as chairperson of the board. (6) During the absence or incapacity of the chief
executive officer, the board 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. Minutes 8. The
chairperson shall ensure that regular minutes are kept of the meetings of the
board. Service contract 9. (1) With
the approval of the Lieutenant-Governor in Council the corporation may enter
into an agreement with a person that provides for his or her appointment to the
office of chairperson or chief executive officer of the corporation. (2) An agreement under this section may prescribe
the terms and conditions of appointment to the office and the term, tenure and
remuneration, including the salary, pension and other rights and benefits that
the appointee is to receive and the terms and conditions under which the
appointment may be terminated and by whom before the expiration of the term of
the appointment. (3) A person with whom an agreement is made under
this section in relation to an office (a) holds that office in accordance with the
agreement and shall vacate it or them accordingly; and (b) does not, by reason only of the appointment to
that office, become an employee of the province. By-laws 10. The
board may make by-laws (a) respecting the calling of meetings of the
board; (b) establishing a quorum of the board; (c) 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; (d) respecting the duties and conduct of the
directors and of the officers and employees of the corporation; (e) respecting the common seal of the corporation
and the use of it; (f) respecting the execution of a contract or
instrument on behalf of the corporation; (g) respecting the lithographing or mechanical
reproduction of signatures on bonds, debentures, securities, or other evidence
of indebtedness of the corporation or upon coupons and the mechanical
reproduction of the common seal of the corporation on the bonds, debentures,
securities, other evidence of indebtedness or coupons; (h) respecting the management and use of any or
all of its property by employees, invitees, licensees or permittees of the
corporation and by another person; and (i) generally, for the conduct and management of
the affairs of the corporation. Affixing seal 11. Until
the board makes other provision under section 10,
the affixing of the common seal of the corporation shall be witnessed by at
least 2 directors. Appointment of
staff 12. (1) The
board may appoint those officers, managers, other staff and employees and
retain consultants, advisors and other professional persons 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. Subsidiaries of
corporation 13. (1) A
company is considered to be a subsidiary of the corporation if (a) it is controlled by (i) the corporation, (ii) the corporation and one or more companies,
each of which is controlled by the corporation, or (iii) one or more companies, each of which is
controlled by the corporation; or (b) it is a subsidiary of a company which is a
subsidiary of the corporation. (2) For the purposes of this section, a company
shall be considered to be controlled by the corporation or one or more
companies if (a) shares of the first-mentioned company carrying
more than 50% of the votes for the election of directors are held, otherwise
than by way of security only, for the benefit of the corporation or other
companies; and (b) the votes carried by the shares are
sufficient, if exercised, to elect a majority of the board of directors of the first-mentioned
company. General powers 14. (1) The
corporation may (a) on behalf of the Crown enter into contracts or
other agreements and acquire and dispose of and otherwise deal with real and
personal property and all rights of all kinds in the name of the corporation; (b) acquire, lease, establish, construct, maintain
and operate works in a part of the province or elsewhere in connection with the
attainment of its objectives as set out in section 5; (c) purchase power from a person and transmit,
make available for use, distribute, deliver, sell, supply and generally use the
power for the purposes of the corporation; (d) contract with a person for the purchase of
petroleum products, notwithstanding another Act; (e) acquire by purchase, lease or otherwise, property,
both real and personal, and water privileges, water powers, rights, easements,
privileges, proprietary rights, interests, and works of every description which
the corporation considers necessary, convenient or advisable to acquire for or
incidental to the exercise of the powers and duties of the corporation and the
attainment of its objects; (f) sell or otherwise dispose of its property,
real or personal, of every nature and kind or an interest in it which is found
by the corporation to be unnecessary for the purposes of the corporation, and
grant an estate, term, easement, right or interest in, over or respecting the
property; (g) contract with a person for (i) the supply, transmission and distribution of
power to that person, and (ii) the construction, maintenance and operation of
works for or incidental to the generation, transmission and distribution of
power on behalf of that person, to be done by the corporation or a person
designated by the corporation to do the things referred to in this paragraph, for the consideration that the corporation
may prescribe; (h) deposit money or securities with a bank,
trustee, trust company, or other depositary in (i) lend money to or invest in a subsidiary of the
corporation; (j) guarantee the repayment by a subsidiary of the
corporation of money advanced to that subsidiary by a lender, together with the
payment of interest on it and of all charges incurred in connection with it; (k) guarantee the performance by a subsidiary of
the corporation of an obligation of that subsidiary contracted by it with a
person to perform, fulfil or observe a covenant, obligation or provision of an
agreement, deed, bond, promissory note or other document or instrument; (l) exercise and enjoy all of the privileges and
immunities conferred on it by this Act and do all acts necessary or incidental
to the attainment of the objects of the corporation referred to in section 5; (m) carry on business incidental and subsidiary to
the carrying out of the objects referred to in section 5 and necessary to enable the company profitably to
carry out those objects; and (n) 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. (2) The powers of the corporation include (a) the power to acquire, lease, construct,
maintain, operate and use in the province and elsewhere land, works, plants,
buildings, structures, machinery, equipment, devices, pole lines, conduits,
pipe lines, tunnels and other property used or useful for carrying out the
objects of the corporation; (b) the powers conferred on the corporation under
this Act; and (c) all other powers that are incidental or
conducive to the attainment of the objects of the corporation. (3) 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. Acts applicable 15. (1) The Labour Relations Act applies to the
corporation. (2) All collective bargaining agreements and other
agreements of the corporation with a trade union, council of trade unions,
employee bargaining agent or affiliated bargaining agent shall continue in
force as if made under the Labour
Relations Act. (3) A trade union, council of trade unions,
employee bargaining agent or affiliated bargaining agent that is party to a
collective bargaining agreement with the corporation under subsection (2) shall
be considered to be certified for the purpose of the Labour Relations Act. (4) Section 11.1 of the Public Sector Restraint Act, 1992 applies to the corporation and
its employees. Application of Acts 16. Notwithstanding
that the corporation is an agent of the Crown (a) the
Mechanics' Lien Act applies in respect of the corporation and all property
to which title is vested in the name of the corporation; and (b) the
Workplace Health, Safety and Compensation Act applies in respect of the corporation
and its employees. Application of
Acts 17. (1) The corporation is subject to the Water Resources Act. (2) The corporation is not a utility as defined by
the Public Utilities Act and that Act
does not apply to the corporation. Borrowing power 18. (1) Subject
to the prior approval of the Lieutenant-Governor in Council, the corporation
may (a) borrow money for purposes related to the
attainment of its objects as set out in section 5;
and (b) to secure the repayment of money borrowed (i) issue bonds, debentures, or other securities
of the corporation, (ii) execute and deliver mortgages, assignments,
conveyances, charges or other encumbrances of and over property of every nature
and kind, both present and future, title to which is vested in the corporation,
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 corporation may be made
payable in a currency approved by the Lieutenant-Governor in Council and expressed
in the security. Guarantee of
loans 19. Subject
to the prior approval of the Lieutenant-Governor in Council, the Minister of
Finance acting for and on behalf of the Crown may unconditionally guarantee
both as to principal and interest, including interest on overdue interest,
premium and sinking fund payments, loans authorized under section 18 to be raised by the corporation, and the loan may
be raised by bonds, debentures, or other securities to be issued by the
corporation (a) in a principal amount not exceeding the
amount; (b) at a rate of interest; (c) on the terms and conditions; and (d) with provision for redemption at the time, that may be approved by 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, and the
bonds, debentures or other securities may be issued or sold in the numbers and
amounts, at the times, at the prices, and upon the terms that the Lieutenant-Governor
in Council or that minister may approve. Manner and form
of guarantee 20. Notwithstanding
the Financial Administration Act or
another Act or law, when a guarantee is given under section 19 of this Act, it shall be given in the manner and
form that the Lieutenant-Governor in Council approves, and the form of
guarantee shall be signed on behalf of the province by the Minister of Finance,
his or her deputy minister or another minister whom the Lieutenant-Governor in
Council may designate, and that signature may be engraved, lithographed or
otherwise mechanically reproduced on the bonds, debentures or other securities
in respect of which the guarantee is given. Guarantee of
payment 21. Where
the payment of interest or a premium or a sinking fund payment has been
guaranteed under this Act, the Crown may incur liability in excess of the
principal amount of the loan to be raised by way of bonds, debentures, or other
securities, to the extent of the guarantee of the interest, premium and sinking
fund payment. Guarantee of repayment 22. The
power conferred by section 19 to guarantee the
repayment of bonds, debentures or other securities includes the power to
guarantee the repayment of part of the bonds, debentures or other securities. Short-term loans 23. (1) The
corporation may, for its purposes, raise short-term loans (a) in the manner and form; (b) in the amounts; (c) in the currencies; (d) for the period, not exceeding 2 years; (e) at the rates of interest, including interest
on overdue interest; and (f) on the conditions, including conditions relating
to discounts, premiums, charges and commissions, that the corporation may determine. (2) The total of the short-term loans raised under
subsection (1) and outstanding at any time shall not exceed a limit to be fixed
by the Lieutenant-Governor in Council, and it is the duty of the Minister of
Finance to see that this total is not exceeded. (3) The Minister of Finance acting on behalf of
the Crown may unconditionally guarantee the repayment of a sum raised under
subsection (1), the payment of interest, including interest on overdue interest
and the payment of a premium. (4) The total of the guarantees made under
subsection (3) and outstanding at any time shall not exceed a limit to be fixed
by the Lieutenant-Governor in Council, and it is the duty of the Minister of Finance
to see that this total is not exceeded. (5) A guarantee given under this section shall be
in the form that the Minister of Finance approves, and the form of guarantee
shall be signed on behalf of the province by that minister whose signature may
be engraved, lithographed or otherwise mechanically reproduced on the bonds,
debentures or other securities in respect of which the guarantee is given. Agreements 24. The
Minister of Finance, acting on behalf of the Crown, may enter into, execute and
deliver a trust deed, trust indenture or an agreement with the corporation, a
lender, a trustee acting for the holders of bonds, debentures or other
securities of the corporation or other person or company setting out the terms
and conditions of a guarantee of a loan to be made under this Act. Performance guarantee 25. Subject
to the prior approval of the Lieutenant-Governor in Council, the Minister of
Finance acting on behalf of the Crown may guarantee the performance by the
corporation of an obligation of the corporation contracted by it with a person (a) to pay money or an instalment; or (b) to perform, fulfil or observe a covenant,
obligation or provision of an agreement, deed, bond, promissory note or other
document or instrument. Loans by government 26. Notwithstanding
the Financial Administration Act or
another Act or law, the Lieutenant-Governor in Council may advance to the
corporation a sum to enable the corporation to reach its objects or to carry on
its business, and the advance may be made in the amount, for the term, at the
rate of interest and on the terms and conditions that may be approved by the Lieutenant-Governor
in Council. Performance under
guarantee 27. A
payment or advance that the Crown may approve in the exercise of a power
conferred by this Act or be required to make under this Act shall be paid by
the Minister of Finance out of the Consolidated Revenue Fund or, where the
payment is to be made in performance of a guarantee, it may be paid out of
funds provided in the manner prescribed in section 55 of the Financial Administration Act. Total amount of
loan 28. (1) The
total of money to be raised by the corporation by loans shall not exceed
$600,000,000 in Canadian currency or its equivalent in the currency of another
country. (2) The total of all loans to the corporation to
be guaranteed by or on behalf of the Crown shall not exceed $600,000,000 in
Canadian currency or its equivalent in the currency of another country. (3) In calculating the maximum amount of money
raised by way of loans by the corporation and of guarantees given under this
Act, no account shall be taken of amounts raised by way of loan that have been
repaid or of a part of the proceeds of a loan to be raised for, or that has
been spent on, the repayment, refinancing, refunding, redemption, retirement or
purchase of the whole or a part of loans or securities of the corporation. Financial year 29. The
financial year of the corporation shall be the calendar year. Capital and operating
expenses 30. The
corporation 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 succeeding financial year. 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 board shall, not later than April 30 in
each year, prepare and submit to the minister a report containing (a) an audited consolidated financial statement
setting out the assets and liabilities of the corporation as at the end of the
immediately preceding financial year and the results of its operations for that
financial year; and (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 public interest in
relation to the affairs or activities of the corporation, and the statement and report shall be laid
before the Legislature within 15 days after they are submitted to the minister,
if the Legislature is then in session, or, if it is not in session, then within
15 days after the beginning of the next session. (3) The financial statement referred to in
subsection (2) shall be signed by 2 directors and shall have attached to it the
auditor's report referred to in subsection (5). (4) 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. (5) The report of the auditors shall be sent to
the minister with each annual report of the corporation referred to in
subsection (2), and it 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. (6) 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 he or she 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. (7) For the purposes of an audit, examination or
investigation conducted under subsection (6), 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. Fund established 32. (1) The
corporation shall establish a fund in the name of the corporation to be
determined under subsection 3(2) which shall be separate and distinct from the
Consolidated Revenue Fund. (2) All money and revenues of the corporation,
including the proceeds of loans raised by the corporation, when they come into
the hands of the corporation, shall be deposited to the credit of the fund referred
to in subsection (1) and the corporation shall have full authority to
administer the money so deposited for the purposes and objects of this Act. Financial
provisions to have full effect 33. Notwithstanding
the Financial Administration Act or
another Act or law, paragraph 14(1)(h) and
section 32 of this Act shall have full effect. Actions 34. (1) Actions,
suits or other legal proceedings in respect of a right or obligation acquired
or incurred by the corporation may be brought by or against the corporation in
the name of the corporation in a court and a judgment shall be carried into
effect by the corporation, and where the judgment is for the payment of money,
it may be enforced by execution against the money, lands and effects of the
corporation as in ordinary cases between party and party. (2) The corporation is liable in tort for damages
for which, if it were a private person of full age and capacity, it would be
liable in respect of (a) torts committed by its employees or agents; or (b) a breach of duty attaching to the ownership,
occupation, possession or control of property. (3) This section has effect, notwithstanding
anything to the contrary contained in the
Proceedings Against the Crown Act or another Act or law. Offences 35. (1) A
person who (a) contravenes this Act; or (b) interferes with or obstructs an inspector or
other person in the discharge of his or her duties under this Act is guilty of an offence and liable on summary conviction to a fine not
exceeding $1,000 and in default of payment of the fine to imprisonment for a
period not exceeding 12 months, or to both a fine and imprisonment. (2) The conviction of a person under paragraph (1)(a) or (b) does not operate as a bar to further prosecution under this Act for a continuance of the offence. Transitional 36. (1) Until
the board of directors is appointed under section 6, the directors of (2) Until a chief executive officer is appointed
under section 7, the chief executive officer of Commencement 37. This Act shall come into force on a day to be proclaimed by the Lieutenant-Governor in Council. ©Earl G. Tucker, Queen's Printer |