BILL NO. 78

1st Session, 58th General Assembly
Nova Scotia
49 Elizabeth II, 2000



Government Bill



Nova Scotia Business Incorporated Act



The Honourable Gordon D. Balser
Minister of Economic Development



First Reading: November 8, 2000

Second Reading: November 14, 2000

Third Reading: November 30, 2000 (WITH COMMITTEE AMENDMENTS)

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An Act Establish
Nova Scotia Business Incorporated

Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Nova Scotia Business Incorporated Act.

2 In this Act,

(a) "Board" means the Board of Directors of the Corporation;

(b) "Corporation" means Nova Scotia Business Incorporated;

(c) "Department" means the Department of Economic Development;

(d) "financial assistance" includes assistance by way of loan, loan guarantee, payroll rebate, the purchase or guarantee of bonds, debentures, notes or other debt obligations and the purchase or acquisition of any common or preferred shares or other equity securities including, but not limited to, venture capital investments;

(e) "Minister" means the Minister of Economic Development;

(f) "Nova Scotia Fund" means the Nova Scotia Business Fund;

(g) "Principal Share" means the Principal Share issued pursuant to this Act.

3 This Act does not apply to a business excluded by the regulations.

4 The Minister has the general supervision and management of this Act and the regulations.

5 There is hereby established a body corporate to be known as Nova Scotia Business Incorporated.

6 The management and control of the affairs of the Corporation is vested in a Board of Directors and the Board may, subject to this Act, exercise the powers of the Corporation.

7 (1) The first Board consists of

(a) the Deputy Minister of Economic Development; and

(b) up to twelve members appointed by the Governor in Council.

(2) The Governor in Council shall designate one of the members of the Board appointed pursuant to clause (1)(b) to be the Chair of the first Board.

(3) Each member of the first Board appointed by the Governor in Council serves for such term, not exceeding four years, as determined by the Governor in Council.

8 (1) Where the term of any member of the Board appointed by the Governor in Council or elected pursuant to this Act expires or any such member ceases to be a member of the Board or is unable to act prior to the expiration of the member's term of office, the Board may, subject to subsection (4), fill the vacancy by election in accordance with the by-laws of the Corporation.

(2) The Board shall determine the term of office for all members elected pursuant to subsection (1), such term not to exceed four years.

(3) No person may be appointed or elected to the Board for more than two consecutive terms.

(4) No person may be elected to or may serve as a member of the Board unless that person is first approved for election to the Board by the holder of the Principal Share.

(5) The holder of the Principal Share may, in exceptional circumstances, remove a member of the Board elected pursuant to this Act.

9 A vacancy on the Board does not impair the right of the remaining members to Act.

10 Seven members of the Board constitutes a quorum.

11 Each member of the Board is entitled to receive such remuneration and such reasonable expenses as determined by the Governor in Council.

12 Upon the expiry of the term of the Chair of the first Board, the Chair shall be that member of the Board elected as Chair by the members of the Board.

13 (1) The Board shall appoint a person who is not a member of the Board to be the President and Chief Executive Officer of the Corporation and may assign to that person such duties as the by-laws of the Corporation may determine.

(2) Subject to the by-laws of the Corporation, the Board may appoint such other officers as it from time to time deems necessary.

14 The Board is a department for the purpose of the definition of "department" in the Members and Public Employees Disclosure Act and, for greater certainty, Part III of that Act applies to the members of the Board.

15 The object of the Corporation is to promote economic development in the Province through

(a) business development, retention and expansion;

(b) the establishment of new businesses in the Province; and

(c) trade development and expansion,

in accordance with strategic directions established by the Department and the strategic plan of the Corporation.

16 (1) The Corporation may

(a) receive, acquire, take, hold, mortgage, sell, convey or otherwise dispose of or deal with real and personal property and any interest therein;

(b) subject to the regulations, render financial assistance that, in the opinion of the Board, will encourage, sustain, improve or develop business in the Province;

(c) undertake trade activities and programs to develop and strengthen trading relationships with traditional and new domestic and international partners;

(d) subject to the approval of the Governor in Council, make by-laws as it deems necessary for the effective attainment of its objects and the exercise of its powers and for the internal control, management and administration of the Corporation;

(e) employ and contract with such persons and corporations as it may from time to time require for the purpose of carrying out its objects and duties;

(f) levy fees related to the rendering of financial and other assistance pursuant to this Act;

(g) do such matters and things as may be necessary or incidental for the effective attainment of its objects and the exercise of its powers.

(2) Except as otherwise provided in this Act or from time to time by order of the Governor in Council, the Corporation has all the powers of a company incorporated pursuant to the Companies Act.

(3) Subject to subsection (4), the Corporation may not, without the prior written consent of the holder of the Principal Share,

(a) distribute any of its property in specie among its shareholders;

(b) amalgamate or merge with one or more other companies;

(c) continue itself in a jurisdiction other than the Province or change its head office or registered office;

(d) enter into any compromise or arrangement with its creditors or any class of creditors or its shareholders or any class of its shareholders;

(e) sell all or substantially all of its business or assets;

(f) allot or issue shares in its capital stock;

(g) borrow money, finance or re-finance the Corporation or give security;

(h) appoint, remunerate or remove its chief executive officer, its chief financial officer or its chief operating officer;

(i) declare or pay dividends on the common shares of the Corporation;

(j) consolidate, convert, subdivide, exchange, cancel or otherwise alter or reorganize the share capital of the Corporation;

(k) wind up or dissolve or surrender its certificate of incorporation; or

(l) carry out any voluntary act of bankruptcy or make a general assignment for the benefit of its creditors or other acknowledgment of insolvency or make any application pursuant to the Bankruptcy and Insolvency Act (Canada) or the Companies Creditors Arrangements Act or any similar legislation.

(4) The holder of the Principal Share may waive the requirement contained in subsection (3) for its prior written consent.

(5) A waiver pursuant to subsection (3) may be given with respect to a specific activity or transaction or with respect to one or more classes of activities or transactions and may be given subject to such terms and conditions as the holder of the Principal Share determines.

(6) Any consent pursuant to this Section is not effective until it is evidenced by an instrument in writing that is addressed to the Corporation, to the attention of the secretary or such other officer as the holder of the Principal Share determines, and that is signed by the Minister or such other person as the Minister designates in writing from time to time.

17 The fiscal year of the Corporation is the same as the fiscal year of the Province.

18 (1) The Governor in Council may, by order, declare that the Corporation has a capital stock in the amount set out in the order divided into such number of shares and of such value as set out in the order.

(2) Where an order is made pursuant to subsection (1),

(a) the Corporation has capital stock in the amount set out in the order divided into the number of shares set out in the order, each share having the value set out in the declaration; and

(b) the capital stock consists of

(3) No more than seventy-five per cent of the Class A common voting shares shall be beneficially owned by any person or persons other than Her Majesty in right of the Province.

(4) No Class A common voting share shall be beneficially owned in whole or in part by any person not ordinarily a resident of the Province.

(5) The Principal Share shall be beneficially owned by Her Majesty in right of the Province.

19 The capital stock of the Corporation may be increased, from time to time, by the Governor in Council.

20 The Nova Scotia Business Development Corporation Fund established pursuant to the Business Development Corporation Act is continued as the Nova Scotia Business Fund.

21 The Governor in Council, upon the recommendation of the Board, may from time to time transfer to the Nova Scotia Fund such amounts as are considered necessary for the purpose of this Act and may charge the same to Capital Account, Special Reserve Account or Revenue of the Province for any year or years.

22 On the coming into force of this Act, repayments and recoveries in respect to sums previously loaned by and outstanding to the Nova Scotia Business Development Corporation shall be paid into the Nova Scotia Fund and may be reloaned by the Corporation.

23 Any guarantee of a loan made pursuant to this Act is a charge upon the Nova Scotia Fund in the amount of the guarantee from time to time authorized.

24 Any repayment or recovery made in respect of any transaction out of the Nova Scotia Fund shall be credited to the Fund.

25 The Corporation, its property and assets are not subject to taxation.

26 (1) A person, firm or association that occupies real property of the Corporation shall be assessed and rated for taxes pursuant to the Assessment Act in respect of that property for the municipal fiscal year 2000-01 and each subsequent municipal fiscal year, but the property itself is not liable.

(2) Notwithstanding subsection (1), a person, firm or association who occupies an incubator mall or part thereof that is designated as such by the Corporation for the purpose of this Act, is exempt from taxation under the Assessment Act in respect of the mall or part thereof so designated.

(3) The Corporation may designate an incubator mall that is owned by the Corporation or a part thereof for the purpose of subsection (2).

27 Notwithstanding any provision of this Act or any special or general Act, no mortgage, pledge or charge against the real and personal property of the Corporation is or is deemed to be a mortgage, pledge or charge against any real and personal property of Her Majesty in right of the Province.

28 The Corporation shall annually appoint an accountant licensed pursuant to the Public Accountants Act to audit the books and records of the Corporation.

29 (1) The Corporation shall, not later than September 30th in each year, prepare and submit to the Minister a financial statement setting forth, as a minimum, the assets and liabilities of the Corporation, the receipts and expenditures of the Corporation for the previous fiscal year, together with a report concerning the work of the Corporation during the previous fiscal year, and such report shall be tabled by the Minister at the next sitting of the House of Assembly.

(2) In addition to the report referred to in subsection (1), the Corporation shall provide a report, in conjunction with the Department and other stakeholders, assessing on an annual basis the Province's economic development competitiveness as measured against other jurisdictions to identify and regularly re-evaluate the Province's economic development strengths and weaknesses.

30 On or before September 30, 2001, the Corporation shall submit to the Minister for approval a five-year strategic plan, including estimates of budgetary requirements, for the operation of the Corporation, and including a detailed business plan for the fiscal year 2002-03.

31 On or before September 30, 2002, and annually thereafter as required by the Minister, the Corporation shall submit to the Minister for approval a detailed business plan for the following fiscal year including estimates of budgetary requirements.

32 (1) Within six months after the end of the 2005 fiscal year, and every five years thereafter, the Corporation shall submit to the Minister a detailed evaluation of its activities compared against the previous five-year strategic plan, including any recommendations for modifications to the mandate of the Corporation.

(2) In addition to the evaluation referred to in subsection (1), the Corporation shall, within the same time periods referred to in subsection (1), submit to the Minister for approval a five-year strategic plan for the continued operation of the Corporation.

33 (1) The Corporation is not an agent of Her Majesty in right of the Province.

(2) A person employed or engaged by the Corporation is not an officer, servant or agent of Her Majesty in right of the Province.

34 (1) The Governor in Council may make regulations

(a) prescribing the manner in which applications for financial assistance may be made;

(b) prescribing the terms and conditions upon which financial assistance may be provided;

(c) limiting the amount of any financial assistance;

(d) prescribing the manner in which and conditions upon which persons may sell or transfer any asset, equipment or product in respect of which a loan has not been fully repaid;

(e) prescribing or limiting the size or type of assets, equipment or products for or in respect of which financial assistance may be provided;

(f) prescribing the terms, conditions or circumstances under which the Board in its discretion may extend, defer, adjust or compromise the repayment of financial assistance or the terms or conditions of any financial assistance;

(g) fixing rates of interest on loans;

(h) respecting the security for obtaining or receiving financial assistance;

(i) prescribing the purposes for which financial assistance may be provided;

(j) respecting the records to be kept by persons to whom financial assistance has been provided;

(k) for the examination and audit of records and accounts and for the inspection of any premises, plant, assets, product or equipment in respect of which financial assistance has been provided;

(l) prescribing commercial, business or other activities that qualify and are deemed to qualify for the purpose of this Act and the regulations;

(m) respecting any matter authorized by this Act to be done by regulation;

(n) defining any word or expression used but not defined in this Act;

(o) deemed necessary or advisable to carry out effectively the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

35 The Governor in Council may make an order providing for the disposition of the assets and obligations of the Nova Scotia Business Development Corporation.

36 A reference in any enactment, resolution or order in council or in any document or instrument of any kind to the Nova Scotia Business Development Corporation shall be read and construed as a reference to the Corporation.

37 (1) In this Section,

(a) "designated person" means an employee at the Department who is determined by the Minister to become an employee of the Corporation;

(b) "employee at the Department" means a person employed in the Department immediately before this Act comes into force, and who was appointed in accordance with the Civil Service Act.

(2) On the coming into force of this Act, the Minister may determine who is a designated person.

(3) Every designated person becomes an employee of the Corporation and ceases to be a person appointed in accordance with the Civil Service Act.

(4) The continuity of employment of a designated person is not broken by the effect of this Section.

(5) The Civil Service Act and the regulations made pursuant to that Act and the Civil Service Collective Bargaining Act do not apply to a designated person.

(6) Every designated person is employed by the Corporation on the same or equal terms and conditions of employment as those under which the employee was employed as an employee by the Department until changed by collective agreement or contract of employment.

(7) Every designated person is deemed to have been employed with the Corporation for the same period of employment that the employee was credited with as an employee at the Department.

(8) Benefits accumulated by a designated person while employed at the Department are vested in the designated person, and the designated person is entitled to receive those benefits from the Corporation.

(9) The Corporation is bound by a collective agreement concluded pursuant to the Civil Service Collective Bargaining Act in relation to the designated person as if it were a party to the collective agreement as the employer and as if the collective agreement were concluded pursuant to the Trade Union Act by a bargaining agent certified pursuant to the Trade Union Act.

(10) For greater certainty, the Corporation is a transferee for the purpose of Section 31 of the Trade Union Act and, without limiting the generality of the foregoing, the Corporation is bound by successor rights as determined pursuant to the Trade Union Act.

(11) Each designated person who was an employee within the meaning of the Public Service Superannuation Act before this Act came into force and each designated person at the department in a bargaining unit whose collective agreement provided for participation in the Public Service Superannuation Plan before the coming into force of this Act is deemed to continue to be a person employed in the public service of the Province for all purposes of the Public Service Superannuation Act and service in the employment of the Corporation is deemed to be service in the public service of the Province.

(12) Subject to any applicable collective agreement or contract of employment, each designated person who was covered by the Nova Scotia Public Service Long Term Disability Plan before this Act came into force or was included in a bargaining unit whose collective agreement provided for long term disability benefits under the Nova Scotia Public Service Long Term Disability Plan is deemed to continue to be a person to whom the Nova Scotia Public Service Long Term Disability Plan applies.

(13) The obligations and liabilities of the Department in respect of designated persons are the obligations and liabilities of the Corporation, including all employee benefits and entitlements.

(14) Notwithstanding anything contained in this Section, Section 71 of the Labour Standards Code does not apply to a period of employment that an employee was credited with as an employee at the Department or as an employee appointed in accordance with the Civil Service Act.

38 The heading immediately preceding Section 33 and Sections 33 and 34 of Chapter 376 of the Revised Statutes, 1989, the Public Service Act, are repealed and the following heading and Sections substituted:

39 Chapter 49 of the Revised Statutes, 1989, the Business Development Corporation Act, is repealed.

40 Chapter 5 of the Acts of 1994, the Economic Renewal Act, is repealed.

41 Sections 14 and 15, clauses 16(1)(a) to (c) and (e) to (g), subsections 16(2) to (6), Section 17 and Sections 19 to 32 and 36 to 40 come into force on such day as the Governor in Council orders and declares by proclamation.

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This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2000 Crown in right of Nova Scotia. Created December 1, 2000. Send comments to legc.office@gov.ns.ca.