“Prescribed” methods mean those methods
prescribed by the regulations of CNCA.
The CNCA requires regulations in place before it can come
into force because the CNCA specifies that certain details
of its regime will be set out in regulations, including
time periods, options for providing notice of members’ meetings
and absentee voting, and user fees. On June 25, 2010, draft
regulations and accompanying explanatory notes were released
by Corporations Canada and posted on its website for consultation.
Comments on the draft regulations may be forwarded to Corporations
Canada by October 1, 2010.
Section 74(1) of the proposed regulations
released on June 25, 2010 set out three options for absentee
voting. If a corporation would like to permit the
power of absentee voting to its members, its by-law will
need to set out the selected option or options to be used
to allow members to vote. The by-law will also need
to set out the procedures for collecting, counting and reporting
the results of any vote. The options set out in section
74 of the proposed regulations are:
·
voting by proxy;
·
voting by mailed-in ballots; and
·
voting by means of a telephonic, electronic
or other communication facility.
1.
Mail-in Ballots
Section 74(1)(b) of
the proposed regulations provides that in order to permit mail-in ballots, the corporation
must have a system to (a) allow votes to be subsequently
verified and (b) permit the tallied votes to be presented
to the corporation without it being possible for the corporation
to identify how each member voted.
2.
Telephonic, electronic or
other communication facility
Under the CNCA, electronic
voting is permitted, unless the by-law provides otherwise.
Similar to mail-in ballots, section 74(1)(c) of the proposed
regulations provides that a corporation may permit voting by means
of a telephonic, electronic or other communication facility,
provided that the corporation has a system to (a)
enable the votes to be gathered in a manner that permits
their subsequent verification, and (b) permit the tallied
votes to be presented to the corporation without it being possible for the corporation
to identify how each member voted.
3.
Proxy vote
Section 74(2) of the
proposed regulations sets out very detailed requirements on how proxy votes
may be exercised, for example:
·
Members not in attendance at a meeting of
members may vote by appointing in writing a proxyholder,
and one or more alternate proxyholders, who are not required
to be members, to attend and act at the meeting in the manner
and to the extent authorized by the proxy and with the authority
conferred by it.
·
A proxy is valid only
at the meeting in respect of which it is given or at a continuation
of that meeting after an adjournment.
·
A member may revoke a proxy by depositing
an instrument or act in writing executed or, in Quebec,
signed by the member or by their agent or mandatary.
·
A proxyholder or an alternate proxyholder
has the same rights as the member by whom they were appointed.
·
If a form of proxy is created by a person
other than the member, the form of proxy must comply with
the detailed requirements set out in the regulations, including
requiring certain text to be in bold-face type.
·
If a form of proxy is sent in electronic form,
the requirements that certain information be set out in
bold-face type are satisfied if the information in question
is set out in some other manner so as to draw the addressee’s
attention to the information.
·
A form of proxy that, if signed, has the effect
of conferring a discretionary authority in respect of amendments
to matters identified in the notice of meeting or other
matters that may properly come before the meeting must contain
a specific statement to that effect.
By application to the Director, a corporation
may obtain authorization to use other methods of absentee
voting where the Director reasonably believes that the members
and the corporation will not be prejudiced. Subsection 171(2)
the CNCA provides as follows:
