Third

Session, 48th General Assembly

Elizabeth II, 2018

BILL 26

AN ACT TO ESTABLISH THE INNOVATION

AND BUSINESS INVESTMENT CORPORATION

Received

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

Second

Reading ............................................................................................

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

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE

CHRISTOPHER MITCHELMORE

Minister of

Tourism, Culture, Industry and Innovation

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would repeal the Business Investment Corporation Act and

the Research and Development Council Act

and establish a new corporation which will be responsible for strategic

investments in innovation and business growth in the province.

A BILL

AN ACT TO ESTABLISH THE INNOVATION AND

BUSINESS INVESTMENT CORPORATION

Analysis

Short title

Definitions

Corporation

Corporation vested

Objects

Powers of corporation

Board

Duty of care

Confidentiality of information

Meetings of board

Remuneration of directors

By-laws

Corporation may enter into agreements

Actions

Appropriation

Financial year

Budget

Report to minister

Audit and financial statement

Report of auditor general

Commercially sensitive information

Regulations

Transitional

SNL2015 cA-1.2

Amdt.

SNL2001 cC-14.1 Amdt.

SNL2016 cI-2.1 Amdt.

SNL2014 cO-9 Amdt.

SNL2016 cP-41.001 Amdt.

NLR 81/16 Amdt.

Repeal

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 Innovation and

Business Investment Corporation Act .

Definitions

2. In

this Act

(a) "board" means the board of directors appointed under

section 7;

(b) "Business Investment Corporation"

means the Business Investment Corporation incorporated under the Business Investment Corporation Act ;

(c) "commercially sensitive information"

includes

(

i) scientific, technical and commercial information,

including trade secrets, industrial secrets, market research, market

strategies, technological processes, technical solutions, manufacturing

processes, operating processes and logistics methods,

(ii) information respecting a peer review, paid

scientific review, technical review or other review required by the corporation

as part of the evaluation of a proposal or project,

(iii) economic and financial models used for

strategic decision making, including the information used as inputs into those

models, and

(iv) information similar to the information

described in subparagraphs (

i) to (iii);

(d) "corporation" means the Innovation and Business Investment

Corporation incorporated by this Act;

(e) "department" means the department presided

over by the minister;

(f) "director" means a director appointed

under

section 7;

(g) "minister" means the minister appointed under the Executive Council Act to administer this

Act; and

(h) "research and development council"

means the research and development council

established under the Research and

Development Council Act .

Corporation

(1) There

is established a corporation to be known as the Innovation and Business

Investment Corporation.

(2) The

corporation is the successor in law to the Business Investment

Corporation and the research and

development council .

(3) The corporation is an agent of the Crown.

(4) The Corporations

Act does not apply to the corporation.

(5) The provisions of this Act constitute the

articles of incorporation of the corporation.

Corporation

vested

(1) Title to all of the property and assets of the Business

Investment Corporation and the research and

development council is vested in the

corporation.

(2) The

corporation is charged with and assumes all of the obligations and liabilities

of the Business Investment Corporation and the research and development council .

(3) An

agreement made between the Business Investment Corporation , the research and development council or a subsidiary of the research and development

council and another party before this Act comes into force continues in force

and is binding on the corporation and the other party to it.

Objects

5. The corporation is responsible for making

strategic funding investments in innovation and business growth in the province

to advance economic development in accordance with the priorities of the government

of the province.

Powers of corporation

(1) The corporation may, in accordance with the

programs and policies set by the minister,

(

a) provide grants, loans or other means of

financial support to or provide guarantees on behalf of persons carrying on or proposing to carry on a business or other

undertaking in the province;

(

b) pay or

retire existing debts or obligations of a person engaged in a business in circumstances

the board considers appropriate in keeping with the objects of the corporation;

(

c) take for

money loaned or otherwise invested, a security of any nature that the board considers

advisable;

(

d) take, or

otherwise acquire and hold, the shares, stock, debentures or other securities

of a company wherever incorporated and sell or otherwise deal with them;

(

e) provide grants, loans or other means of

financial support to commercial or social enterprises, academic institutions,

not-for-profit organizations or individuals undertaking research and innovation

activities consistent with the objects of the corporation; and

(

f) take over

the assets of and carry on, either alone or in conjunction with another person,

the business or a part of the business of a person indebted to the corporation.

(2) The corporation may

(

a) deposit

money or securities with a bank, trustee, trust company or other depository;

(

b) invest and

deal with, in the manner that may be determined by the board, the money of the

corporation or on deposit with the corporation that is not immediately required;

(

c) draw,

make, accept, endorse, execute and issue promissory notes, bills of exchange

and other negotiable or transferable instruments;

(

d) appoint

agents to act on its behalf for the purpose of this Act and subject to those

conditions that the board shall determine; and

(

e) 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.

Board

(1) The

corporation shall be governed by a board of directors consisting of

(

a) the deputy minister of the department or his

or her designate;

(b) 2 assistant deputy ministers of the

department or their designates; and

(

c) not less than 2 and not more than 9 other

persons appointed by the Lieutenant-Governor in Council.

(2) The Lieutenant-Governor in Council shall

appoint, from the directors appointed under paragraph (1)(c), one director as

the chairperson and another director as the vice-chairperson.

(3) A director appointed under paragraph (1)(

c) shall be appointed for a term of up to 3 years but may be removed by the Lieutenant-Governor

in Council before the expiration of his or her term.

(4) A director appointed under paragraph (1)(

c) is

eligible to be reappointed but shall not serve for longer than 6 consecutive

years.

(5) Where the term of a director expires, he or

she continues to be a director until reappointed or replaced.

(6) The exercise of the powers of the board is not

impaired by a vacancy on the board.

Duty of care

8. The

directors and any person who is delegated duties and powers by the corporation

or through the by-laws shall, in exercising his or her powers and discharging

his or her duties,

(

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.

Confidentiality

of information

9. The

directors and any person who is delegated duties and powers by the corporation

or through the by-laws shall keep confidential all matters that come to their

knowledge in the exercise of their powers and the discharge of their duties

under this Act.

Meetings of board

(1) The board may conduct its meetings in

person, by video conference, by teleconference or by other telecommunication

device so long as, at a meeting, all participants may communicate

simultaneously and instantaneously.

(2) A director participating

in a meeting by videoconference, teleconference or other telecommunication

device shall be counted as a member present at the meeting for the purpose of

establishing a quorum.

Remuneration of

directors

11. The

directors appointed under paragraph 7(1)(

c) shall not be paid a salary but may

be paid, in accordance with guidelines established by the Lieutenant-Governor

in Council,

(

a) amounts for travel and other expenses incurred in

the work of the board; and

(

b) other remuneration.

By-laws

(1) The

board, with the approval of the minister, may make by-laws

(

a) respecting the calling of meetings of the board;

(

b) respecting the participation of directors in

meetings of the board by video conference, teleconference or other telecommunication

device;

(

c) establishing a quorum of the board;

(

d) respecting the conduct of business at meetings

of the board, the establishment of committees of the board and the delegation

of duties to those committees;

(

e) respecting voting, including voting by electronic

means;

(

f) respecting the duties and conduct of the directors;

(

g) respecting the delegation of authority to a

person designated by the board, including the conditions under which the authority

may be delegated or exercised;

(

h) respecting conflicts of interest;

(

i) designating a director for the purpose of

section 21;

(

j) respecting the execution of a contract or

instrument on behalf of the corporation; and

(

k) generally, for the conduct and management of

the affairs of the corporation.

(2) The by-laws made under this

section are not

subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act .

Corporation may

enter into agreements

(1) In

this section, "agent" means

(

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 similar to the objects

of the corporation.

(2) The

corporation in keeping with its objects may work with an agent to carry out or

implement programs on its behalf but a contract or agreement binding the

corporation in this regard is subject to the approval of the

Lieutenant-Governor in Council.

Actions

14. Legal proceedings in respect of a right or

obligation acquired or incurred by the corporation may be brought by or against

it in the name of the corporation.

Appropriation

(1) The financial requirements of the corporation

shall be defrayed out of money appropriated for that purpose by the Legislature

or funds derived from a source or agreement under

section 13.

(2) The balances that the Lieutenant-Governor in

Council in consultation with the corporation considers to be available to the

Crown 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 board.

Financial year

16. The financial year of the corporation shall be

the same as the financial year of the province.

Budget

17. The

board 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 financial year.

Report to

minister

18. The corporation shall, not later than September

30 in each year, prepare and submit to the minister a financial statement

setting out the assets and liabilities of the corporation, a copy of its

audited financial statement and the receipts and expenditures of the

corporation for the previous financial year.

Audit and financial

statement

(1) The

auditor general shall annually audit the financial statement of the corporation.

(2) The financial statement referred to in subsection

(1) shall be signed by 2 directors.

(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, or of another activity that may

constitute an offence under the Criminal

Code , another Act of Canada or

an Act of the province, 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.

Commercially

sensitive information

(1) In

this section, "designated director" means the director designated by

the board under the by-laws to exercise the powers and discharge the duties under

this section.

(2) Notwithstanding

section 7 of the Access to Information and Protection of

Privacy Act, 2015 , in addition to

the information that shall or may be refused under

Part II, Division 2 of that

Act, the designated director

(

a) may refuse to disclose to an applicant under

that Act commercially sensitive information of the corporation; and

(

b) shall refuse to disclose to an applicant under

that Act commercially sensitive information of a third party

where the designated director, taking into

account sound and fair business practices, 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 corporation 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 corporation or the third party.

(3) Where an applicant is denied access to information

under subsection (2) and a complaint is made to the commissioner under

section

42 of the Access to Information and Protection

of Privacy Act, 2015 , the commissioner shall, where he or she determines

that the information is commercially sensitive information,

(

a) on receipt of the designated director's certification

that he or she has refused to disclose the information for the reasons set out

in subsection (2); and

(

b) on confirmation of the designated director's

decision by the board,

uphold the decision of the designated

director not to disclose the information.

(4) Where a person appeals

(

a) under subsection 52(1), subsection 53(1) or

section

54 of the Access to Information and Protection

of Privacy Act, 2015 , from a decision under subsection (2); or

(

b) under subsection 52(1), subsection 53(1) or

section

54 of the Access to Information and

Protection of Privacy Act, 2015 , from a refusal by the designated director under

subsection (2) to disclose information,

paragraph 59(3)(

a) and

section 60 of that

Act apply to that appeal as if

Part II, Division 2 of that Act included the

grounds for the refusal to disclose the information set out in subsection

(2) of this section.

(5) Paragraph 102(3)(

a) of the Access to Information and Protection of

Privacy Act, 2015 applies to information referred to in subsection (2) 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, Division 2 of that Act.

(6) 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 designated director.

(7) Where the auditor general prepares a report

which contains information respecting the corporation, or respecting a third

party that was provided to the corporation by the third party, a draft of the

report shall be provided to the designated director, 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.

(8) In the case of a disagreement between the

auditor general and the designated director 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.

(9) Notwithstanding the Citizens' Representative Act , the corporation, 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

provisions of this Act including regulations for the general administration of

this Act.

Transitional

(1) On the coming into force of this Act

and until the first board is appointed under this Act, the board shall consist

(

a) not less than 5 and not more than 13 persons

who were directors of the board of the Business Investment Corporation or the research

and development council immediately before the coming into force of this Act;

(

b) the deputy minister of the department; and

(c) 2 assistant deputy ministers of the

department.

(2) The by-laws of the Business Investment Corporation

and the research and development council are, with the necessary changes, the

by-laws of the corporation on the coming into force of this Act until the board

makes by-laws under this Act.

(3) Where the by-laws of the Business Investment

Corporation and the by-laws of the research and development council conflict,

the by-laws of the Business Investment Corporation prevail.

(4) Notwithstanding subsections (1) and (2), where

a power or duty was conferred on the Chief Executive Officer of the research

and development council under the Research

and Development Council Act , by-laws made under that Act or any terms of

reference of the board under that Act before the coming into force of this Act,

the deputy minister shall exercise that power or discharge that duty on the coming

into force of this Act.

SNL2015 cA-1.2

Amdt.

(1) Schedule A of the Access to Information and Protection of Privacy Act, 2015 is

amended by adding immediately after paragraph (

j) the following:

(j.1)

section 21 of the Innovation and Business Investment Corporation Act ;

(2) Paragraph (

p) of

Schedule A of the Act is repealed.

SNL2001 cC-14.1

Amdt.

25. The

Schedule to the Citizens' Representative Act is amended by

(

a) deleting the reference "Business

Investment Corporation"; and

(

b) adding immediately before the reference

"Insurance Adjusters, Agents and Brokers Appeal Board" the reference

"Innovation and Business Investment Corporation".

SNL2016 cI-2.1

Amdt.

26. The

Schedule to the Independent Appointments Commission Act is amended by

(

a) deleting the statutory appointment reference

" Business Investment Corporation Act,

subsection 7(1)";

(

b) adding immediately before the statutory

appointment reference " Labour

Relations Act ,

section 6" the statutory appointment reference "Innovation

and Business Investment Corporation Act, paragraph 7(1)(c)"; and

(

c) deleting the statutory appointment reference

" Research and Development Council

Act , subsections 6(2) and 12(1)".

SNL2014 cO-9

Amdt.

27. The

Schedule to the Other Post-Employment Benefits Eligibility Modification Act is

amended by deleting the reference "Research and Development Council".

SNL2016 cP-41.001

Amdt.

28. Subsection 5(1) of the Public Procurement Act is repealed and the following substituted:

Application

(1) This

Act applies to procurement by public bodies, and with respect to the

corporation established under the Energy

Corporation Act , this Act applies to that corporation and the subsidiaries

of it except as provided in that Act.

NLR 81/16 Amdt.

29. The

Schedule to the Public Sector Compensation Transparency Regulations under the Public Sector Compensation Transparency Act

is amended by

(

a) adding immediately before the reference

"Labour Relations Board" the reference "Innovation and Business

Investment Corporation"; and

(

b) by deleting the reference "Research &

Development Corporation".

Repeal

30. The Business

Investment Corporation Act and the Research

and Development Council Act are repealed.

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