First

Session, 46th General Assembly

Elizabeth II, 2008

BILL 70

AN ACT TO ESTABLISH THE

NEWFOUNDLAND AND LABRADOR RESEARCH AND DEVELOPMENT COUNCIL

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

SHAWN SKINNER

Minister

of Innovation, Trade and Rural Development

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTE

The purpose of this Bill is set out

in the

long title.

A BILL

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

Analysis

Short title

Definitions

Council established

Objects of the council

Powers of the council

Board of directors

Tenure of members

Remuneration of council members

Executive of the council

Meetings of the board

By-laws

Chief executive officer

Appointment of staff

Borrowing power

Financial year

Capital and operating expenses

Audit and financial statement

Report of auditor general

Fund established

Ownership

Records of commercially sensitive

information

Regulations

Disposal of profits

Labour Relations Act

Public Tender Act

Intergovernmental agreements

RSNL1990 cR-13 Rep.

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 Research and

Development Council Act .

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 Newfoundland and

Labrador 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.

Council

established

(1) The

Newfoundland and Labrador Research and Development Council is established as a

corporation.

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

(3) The Corporations

Act, except for

section 203, does not apply to the council.

(4) The provisions of this Act constitute the

articles of incorporation of the council.

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.

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

(

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.

Board of

directors

(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.

Tenure of members

(1) Members

of the board shall be appointed for a term of 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.

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.

Executive of the

council

(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.

Meetings of the

board

(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.

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.

Chief executive

officer

(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.

Appointment of

staff

(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.

Borrowing power

(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

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.

Financial year

15. The

financial year of the council shall be from April 1 in a year to March 31 in

the next year.

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.

Audit and financial

statement

(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.

Report of auditor

general

(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.

Fund established

(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.

Ownership

(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.

Records of commercially

sensitive information

(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.

Regulations

22. The

Lieutenant-Governor in Council may make regulations to give effect to the

purpose of this Act.

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.

Labour Relations

Act

24. The

Labour Relations Act applies to the

council.

Public Tender Act

(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.

Intergovernmental

agreements

(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

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.

RSNL1990 cR-13

Rep.

27. The Research

Council Act is repealed.

Commencement

28. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Earl G. Tucker, Queen's Printer