DATE: 20060616
COURT OF APPEAL FOR ONTARIO
SIMMONS, CRONK and ROULEAU JJ.A.
B E T W E E N :
BRIAN LAWRENCE
Sean Dewart for the appellant
Applicant (Appellant)
- and -
THE TORONTO HUMANE SOCIETY
Pellegrino Capone for the respondent
Respondent (Respondent)
Heard: February 10, 2006
On appeal from the judgment of Justice Gertrude F. Speigel of the Superior Court of Justice dated July 15, 2005, reported at (2005), 2005 25634 (ON SC), 9 B.L.R. (4th) 80.
CRONK J.A.:
I. Overview
1Section 307(1) of the Corporations Act, R.S.O. 1990, c. C.38 (the “Act”) affords a statutory right to any person, on certain conditions and subject to specific safeguards, to obtain a list of the shareholders or members of a corporation governed by the Act. The primary issue on this appeal concerns the interpretation of the access to information scheme established by s. 307 of the Act.
2The appellant, Brian Lawrence, is the vice-president of Local 419 of the International Brotherhood of Teamsters and Teamsters Canada, a trade union that is the certified bargaining agent for the unionized employees of the respondent, The Toronto Humane Society. The Society is a charitable corporation without share capital that is governed, in part, by the Act.
3In his capacity as a Union official, Lawrence had been involved with labour relations issues affecting the Society since 1996. In July 2004, he applied via the Internet to become a member of the Society. His membership application was accepted by the Society.
4On September 30, 2004, Lawrence applied for a list of the members of the Society pursuant to s. 307(1) of the Act. After an exchange of correspondence, the Society declined to provide the list. Consequently, in early February 2005, Lawrence brought an application under s. 332 of the Act and Rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a court order requiring the Society to deliver the requested list.
5The application was heard on May 20, 2005 by G. Speigel J. of the Superior Court of Justice. By judgment dated July 15, 2005, she held that Lawrence’s purpose in requesting the list was not “for the benefit or the purposes of the Society” but, rather, was “to obtain a benefit for the Union” by seeking “to persuade the Society’s members to apply pressure on the directors [of the Society] to capitulate in their dealings with the Union”. The application judge concluded that Lawrence’s reason for wanting the membership list was not “a reason connected to the Corporation” and that his request for the list did not comply with s. 307 of the Act. She dismissed the application.
6Lawrence appeals from that dismissal. He argues that the application judge erred in her analysis of s. 307 of the Act by failing to apply the governing principles of statutory interpretation, by embarking on an inquiry concerning the anticipated content of his future communications with other members of the Society, by holding that his purpose for requesting the membership list was “not connected to” the Society, and by failing to apply the common law in a manner consistent with the right to freedom of expression enshrined in the Charter of Rights and Freedoms.
7For the reasons that follow, I conclude that the application judge erred in her approach to the legal test applicable to the determination of whether Lawrence was entitled to receive a list of the Society’s members under s. 307(1) of the Act and by concluding that his access request was for a purpose “not connected” with the Society. Accordingly, I would allow the appeal.
II. Additional Facts
(1) Positions of the Parties
8Lawrence and several other Union officials became members of the Society in early July 2004. Prior thereto, by letter dated June 28, 2004, Lawrence had written to various members of the Society concerning unresolved grievance proceedings between the Society and certain of its unionized employees. In preparing his letter, Lawrence made use of a Society membership list that the Society claims was stolen from its offices in June 2004. Lawrence maintained that he was unaware that the list was stolen and said that the copy of the list that he received had been slipped under his office door. There is no suggestion in this proceeding that Lawrence or the Union were responsible for the theft of the Society’s membership list.
9In his letter, Lawrence urged members of the Society to challenge the propriety of the decision by the Society’s management to use funds donated to the Society to finance the Society’s defence of the grievance proceedings. He urged the recipients of the letter “to attend your membership meeting and ask questions about the spending of donated dollars”.
10The Society opposed Lawrence’s application for disclosure of its membership list on several grounds. In an affidavit sworn on March 10, 2005 by Michael Connor, the Society’s Managing Director of Corporate Services, the Society asserted that Lawrence was not “a bona fide member of the Society who aspire[d] to the objectives of the Society” and that his purpose in obtaining membership in the Society and, subsequently, in seeking to obtain the Society’s membership list under s. 307(1) of the Act, was to “effect Management/Union relations for the benefit of the Union, not for the benefit of the Society or the animals of the Society and the purposes and objectives connected to the Society”. Connor claimed:
Mr. Lawrence’s sole purpose for becoming a member and seeking the Membership List is to benefits [sic] the bargaining position for [the Union] and not for any purposes connected with the objects of the Society. His interest is for the union that he represents and providing Mr. Lawrence the Membership List would be compelling the Society to aid in its own harm or destruction.
11In resisting Lawrence’s application for access to the Society’s list of members, the Society relied on Lawrence’s prior use of the stolen membership list as evidence of how Lawrence would use the Society’s membership list in the future if it was provided to him under s. 307(1) of the Act. The Society claimed that Lawrence’s June 2004 letter was harmful to the Society and that it damaged the Society’s relations with its members.
12Lawrence denied the Society’s claims regarding his motivation for becoming a member of the Society and his purpose in seeking access to the Society’s membership list. In an affidavit sworn on March 31, 2005, Lawrence outlined his view that labour relations at the Society had deteriorated dramatically since 2001, resulting in impaired employee morale, a significant backlog of unresolved grievance cases involving the Society’s unionized employees, and the expenditure of the Society’s revenues (including donations from the public) to defend the escalating number of grievance proceedings.
13In the same affidavit, Lawrence explained his reasons for becoming a member of the Society:
In fact, it is exactly because I do care about the well-being of the Society that I became a member. It has always been and remains my intention to exercise the rights of a member set out in the Corporations Act to inform the Society’s members about problems in the management and direction of the Society and to lobby the other members to exercise their rights to bring about responsible and effective management of the Society.
In particular, I joined the Society because I had grave concerns about the direction in which the Society is headed and the manner in which its funds are being allocated. Because of my position in the Union, I am acutely aware that the Society is spending large amounts of its funds which it raises by way of donations, in fighting the Union’s unresolved grievances at arbitration. The Society’s use of its scarce resources in such a manner causes me great concern that the Society is losing sight of its stated mission, namely the protection of animals and the prevention of cruelty and suffering of animals.
That is, I am concerned that the Society’s deteriorating labour relations will ultimately have an impact on the Society’s viability. I appreciate that others may not share my views, but I feel that it is fair for me to share my opinions with the Society’s other stakeholders, which is what I propose to do by exercising my rights as a member.
14Lawrence also elaborated on his purpose in requesting a copy of the Society’s membership list:
I have grave concerns about the future of the Society, its employees and the animals that it is supposed to care for and protect. Many of the Union’s members are deeply concerned with recent events at the Society and with the direction that the Society appears to be taking.
It is for that reason that I require the Society’s membership list. I am a member of the Society and I wish to bring my concerns to the attention of my fellow members. Without this list, and in the face of the Society’s Board’s efforts to deny me access to the list and to its by-laws, I will be unable to discuss my concerns with other like-minded members who may also wish to see the Society undergo some positive change.
15When he was cross-examined on his affidavits, Lawrence testified that by becoming a member of the Society, he was “playing a role to try to make it better for the Teamster members”, that the purpose of his becoming a Society member was “for the membership of the [Society]”, that this was “necessary to me to follow through on my responsibilities [as a vice president of the Union]”, and that this was “to ensure that I got involved in the membership meetings to try to make a change for the better for the Union members”. He also said:
I decided to become a member when it became apparent that to try to make a change in the direction that the [Society] was taking, that membership would allow me the opportunity to attend meetings, to vote, to ask questions, access or I thought access information in the running of the [Society], and to openly speak with other members of the [Society].
My relationship with the [Society] over, since 1996 had been a professional relationship and of recent, the only way it would appear that one would be able to communicate with the management was to be directly involved in the process of a member, and that hence, that’s why I applied for membership.
16The Society maintained that Lawrence’s evidence confirmed that his reasons for becoming a member of the Society and requesting a list of the Society’s members were unrelated to the protection or advancement of the corporate and charitable purposes of the Society. Connor deposed in a reply affidavit sworn on April 7, 2005:
It is clear from reviewing Mr. Lawrence’s Affidavit that Mr. Lawrence’s purpose for requesting the Membership List is for purposes connected to his Union functions and as Vice-President of Local Union 419. … His purpose is to protect and enhance the rights of his Union members vis à vis the Society. The purpose of the [Society], being the purpose of the corporation, is set out in its incorporating documents and mission statement, which states “to promote the humane care and protection of all animals and to prevent cruelty and suffering”.
(2) Revocation of Lawrence’s Membership
17On April 6, 2005, two months after the commencement of his application under s. 332 of the Act for an order directing the disclosure to him of a copy of the Society’s membership list, the Society provided Lawrence with a letter notifying him that his membership was “issued in error”. The letter went on to say that, “In accordance with its authority under the By-laws as regards admission of members, your membership has been revoked by the Board of Directors.” The letter was accompanied by a refund of the membership fee previously paid by the Union on behalf of Lawrence.
18At the time of his receipt of this letter, Lawrence had been a member of the Society for about nine months.
19Relying on this revocation letter, the Society argued before the application judge that Lawrence had no standing to seek relief against the Society under s. 332 of the Act, because he was no longer a member of the Society when his application was argued in May 2005. In this court, the Society further asserts that the access right created under s. 307(1) is qualified by s. 332 of the Act, with the result that only shareholders, members or creditors of a corporation have standing to obtain access to a corporation’s membership list under s. 307(1) of the Act.
(3) Application Judge’s Decision
20The application judge did not address the Society’s challenge of Lawrence’s standing in her reasons. Instead, she dealt with Lawrence’s application on the merits.
21The application judge acknowledged Lawrence’s concerns about the Society’s management and board of directors, the alleged deterioration in labour relations between the Society and its unionized employees, and Lawrence’s desire to raise these concerns with other members of the Society. She next reviewed the corporate and charitable purposes of the Society, as outlined in its declaration of incorporation and its mission statement and found, as I have mentioned, that Lawrence’s purpose in requesting the Society’s membership list was not “for the benefit or the purposes of the Society”. Rather, in her view, it was “to obtain a benefit for the Union, not for the Society”.
22In making this finding, the application judge addressed the anticipated content of Lawrence’s future communications with the Society’s members, observing that Lawrence “wants to persuade the Society’s members to apply pressure on the directors to capitulate in their dealings with the Union”. The application judge went on to say:
14Members of a non-share capital corporation would want other members to inform them about the assets of the corporation; they would want other members to inform them about issues that vitally affect the well-being of the corporation. They would not want a person, such as Lawrence (a "Lobbyist"), who signs up as a member in the capacity of a Trojan horse, to be able to lobby the members to benefit the Lobbyist's own economic interests, interests that have nothing to do with the Society or, worse yet, are adverse to the interests of the Society.
23On this basis, the application judge concluded that Lawrence’s reason for seeking the Society’s membership list was not “a reason connected to the [Society]” and, therefore, that his access request did not comply with s. 307 of the Act. Accordingly, she dismissed the application.
III. Statutory Provisions
24Sections 307 and 332 of the Act provide:
Where list of shareholders to be furnished
- (1) Any person, upon payment of a reasonable charge therefor and upon filing with the corporation or its agent the affidavit referred to in subsection (2), may require a corporation, other than a private company, or its transfer agent to furnish within ten days from the filing of such affidavit a list setting out the names alphabetically arranged of all persons who are shareholders or members of the corporation, the number of shares owned by each such person and the address of each such person as shown on the books of the corporation made up to a date not more than ten days prior to the date of filing the affidavit.
Affidavit
(2) The affidavit referred to in subsection (1) shall be made by the applicant and shall be in the following form in English or French:
Form of Affidavit
Province of Ontario In the matter of County of (Insert name of corporation)
I, ......................... of the .................. of ..................... in the .................................. of .......................................
make oath and say (or affirm):
(Where the applicant is a corporation, indicate office and authority of deponent.)
I hereby apply for a list of the shareholders (or members) of the above-named corporation.
I require the list of shareholders (or members) only for purposes connected with the above-named corporation.
The list of shareholders (or members) and the information contained therein will be used only for purposes connected with the above-named corporation.
Sworn, etc.
Idem, where applicant a corporation
(3) Where the applicant is a corporation, the affidavit shall be made by the president or other officer authorized by resolution of the board of directors of such corporation.
Offence
(4) Every person who uses a list of shareholders or members of a corporation obtained under this section,
(a) for the purpose of delivering or sending to all or any of such shareholders or members advertising or other printed matter relating to shares or securities other than the shares or securities of the corporation; or
(b) for any purpose not connected with the corp-oration,
is guilty of an offence and on conviction is liable to a fine of not more than $1,000.
Offence
(5) Every corporation or transfer agent that fails to furnish a list in accordance with subsection (1) when so required is guilty of an offence and on conviction is liable to a fine of not more than $1,000, and every director or officer of such corporation or transfer agent who authorized, permitted or acquiesced in such offence is also guilty of an offence and on conviction is liable to a like fine.
Interpretation
(6) Purposes connected with the corporation include any effort to influence the voting of shareholders or members at any meeting of the corporation, any offer to acquire shares in the corporation or any effort to effect an amalgamation or reorganization and any other purpose approved by the Minister.
Aggrieved shareholders
- Where a shareholder or member or creditor of a corporation is aggrieved by the failure of the corporation or a director, officer or employee of the corporation to perform any duty imposed by this Act, the shareholder, member or creditor, despite the imposition of any penalty and in addition to any other rights that he, she or it may have, may apply to the court for an order directing the corporation, director, officer or employee, as the case may be, to perform such duty, and upon such application the court may make such order or such other order as the court thinks fit.
IV. Issues
25The parties raise the following issues on this appeal:
(1) Did the application judge err in her analysis of s. 307 of the Act:
(a) by failing to consider and apply the controlling principles of statutory inter-pretation;
(b) by inquiring into the anticipated content of Lawrence’s future communications with other members of the Society;
(c) by holding that Lawrence’s purpose for requesting the Society’s list of members was not “connected to the Society”; and,
(d) by failing to apply the common law in a manner consistent with the right to freedom of expression enshrined in the Charter?
(2) Did Lawrence lack standing under s. 332 of the Act to bring his application and any appeal therefrom?
26Although the Society argued before the application judge that Lawrence’s request for access to the Society’s membership list should also be denied on the basis that to disclose the information contained in the list would contravene the Personal Information Protection and Electronic Documents Act, S.C. 2005, c.5, federal privacy legislation, this argument was not advanced by the Society before this court. Accordingly, this issue is not addressed in these reasons.
V. Analysis
(1) Challenge of Lawrence’s Standing
27The Society’s claim that Lawrence lacked standing to commence his application and to appeal from the dismissal thereof raises a threshold issue concerning the alleged mootness of this appeal. Accordingly, it is appropriate to address this issue first.
28In my view, on this record, this claim is without merit. I say this for the following reasons.
29Lawrence’s application was brought under s. 332 of the Act. That section permits a “shareholder or member or creditor” of a corporation who is aggrieved by the failure of the corporation to perform a duty imposed by the Act, to seek relief from the court in the form of an order directing the corporation to perform the duty in question. In contrast, the access right afforded under s. 307(1) of the Act is available to “any person”.
30During oral argument before this court, the Society maintained: that ss. 332 and 307(1) of the Act must be read together; that s. 332 limits the categories of persons who are entitled to seek access to a corporation’s membership list under s. 307(1) to those persons specifically identified in s. 332; and that the use of the phrase “any person” in s. 307(1) was a drafting “mistake”. I would not accept this argument.
31Section 307, read as a whole, contains no evidence of any legislative intent that the access right established by s. 307(1) be qualified in the manner urged by the Society. Nor does s. 332 of the Act contain any indication of such an intent. Indeed, given the use of the phrase “shareholder, member or creditor” in s. 332, the use of the phrase “any person” in s. 307(1) supports the opposite interpretative conclusion.
32In addition, the legislative history of s. 307(1) suggests that the use of the phrase “any person” in s. 307(1) was deliberate, not inadvertent, and that it was intended to extend the access right under s. 307(1) to persons beyond those specifically enumerated in s. 332 of the Act. I will return to the issue of the legislative history of s. 307(1) later in these reasons.
33I also disagree with the Society’s contention that the April 2005 purported revocation of Lawrence’s membership in the Society operated to deprive him of standing to bring his application under s. 332 of the Act.
34Lawrence became a member of the Society approximately three months before he first requested disclosure of the Society’s membership list. His membership application, submitted to the Society via the Internet, was accepted in accordance with procedures apparently then in place at the Society for the electronic processing of such applications. It appears that only after the acceptance of Lawrence’s application, the Society’s by-laws were amended to require approval of membership applications by the Society’s board of directors.
35The Society contends that Lawrence’s membership in the Society was revoked under the authority of and in accordance with its by-laws. The state of the evidential record before this court regarding the membership and amendment provisions of the Society’s by-laws in July 2004 (when Lawrence became a member of the Society) and in February 2005 (when he commenced his application under s. 332) is unsatisfactory. However, even assuming (without deciding) that the revocation of Lawrence’s membership conformed to the Society’s by-laws, Lawrence was a member of the Society in September 2004 when he first requested receipt of the Society’s membership list.
36Lawrence was also a member of the Society throughout the period between October 1, 2004 to February 4, 2005, while the Society considered, and failed to comply, with his request for access to the Society’s list of members.
37It does not appear that any objection to Lawrence’s membership status was raised during this period. To the contrary, the Society confirmed in writing the acceptance of Lawrence’s membership application, forwarded a letter to Lawrence dated September 7, 2004 (in his capacity as a member of the Society) advising of a scheduled annual general meeting of members and, on October 21, 2004, responded to a request by Lawrence (made in his capacity as a Society member) to inspect the by-laws and the minutes of meetings of members of the Society. The Society did not contest Lawrence’s standing as a member of the Society in any of these communications.
38Lawrence was also a member of the Society on February 4, 2005, when he commenced his application under s. 332 of the Act. It was not until April 6, 2005, after the delivery of Lawrence’s affidavit materials in support of his application, that the Society wrote to Lawrence – without prior notice to him – purporting to unilaterally revoke his Society membership and asserting that his membership was originally issued “in error”.
39On these particular facts, in my opinion, it is not open to the Society to rely on its ‘after-the-fact’ revocation of Lawrence’s membership in the Society to defeat his s. 332 application and to deprive him of his appeal rights arising therefrom. In the circumstances here, the Society’s revocation notice cannot operate retroactively to strip Lawrence of his membership status so as to invalidate legal proceedings properly initiated. To hold otherwise would permit the Society to control the outcome of litigation properly commenced by one of its members through the arbitrary device of manipulating membership in the corporation. This would undermine, and ultimately frustrate, both the rights of members and the court’s process.
40Accordingly, I would reject the Society’s challenge of Lawrence’s standing and its claim that this appeal should be dismissed as moot.
(2) Interpretative Issues
41I will address the interpretative issues engaged on this appeal under two headings: (i) the purpose and scheme of s. 307 of the Act; and (ii) the application judge’s analysis of s. 307.
(i) Purpose and Scheme of Section 307
42At common law, a shareholder or member of a corporation enjoyed a limited right to inspect the documents of a corporation. In Bank of Bombay v. Suleman Somji (1908), [1908-1910] All E.R. Rep. 533 at 535, Lord Atkinson of the Judicial Committee of the Privy Council described this qualified right of access in these terms:
The result of the authorities is summed up, in their Lordships’ view correctly, in Taylor on Evidence, ((10th Edn. 1906) vol. 2, para. 1495) in the words following:
“On the application of a member the King’s Bench Division will, in general, grant a rule for a limited inspection of the documents of the corporation, if it be shown that such inspection is requisite with reference either to an action then instituted or at least to some specific dispute or question depending in which the applicant is interested; but, even in this case, the inspection will be granted to such an extent only as may be necessary for the particular occasion. The rule was formerly sometimes laid down more broadly, and the language ascribed to the court in one or two cases might almost lead to the inference that members of a corporation have an absolute right, whenever they think fit, to inspect all papers belonging to the aggregate body. But any such doctrine is now exploded; and the privilege of inspection is now confined to cases where the member of the corporation has in view some definite right or object of his own, and to those documents which would tend to illustrate such right or object.”
See also Brunet v. Prince County Hospital (1983), 1983 4632 (PE SCTD), 43 Nfld. & P.E.I.R. 124 (P.E.I.S.C.) at paras. 9-13.
43In Ontario, however, the right of a member of a not-for-profit corporation to obtain a copy of the corporation’s membership list is codified in s. 307(1) of the Act. The interpretation of this section, including consideration of the extent of the right conferred under it, appears to be a matter of first impression in this court.
44The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, quoting from E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87. This well-established principle governs the interpretation of s. 307 of the Act.
45At the outset it may be observed that, in contrast to the position at common law, on its face s. 307(1) of the Act affords a broad right of access to a shareholder or membership list. It allows “any person” to obtain such a list on payment of a reasonable charge and the filing of an affidavit in the form contemplated by s. 307(2).
46The formal pre-conditions to the exercise of the access right established by s. 307(1) are straightforward: on the filing of an affidavit in prescribed form, and on the payment of a reasonable charge, “any person” may “require” a corporation to provide a list of its shareholders or members, within ten days from the filing of the affidavit, containing the information described in s. 307(1). Under s. 307(2), the requisite affidavit must set out that the deponent requires and will use the requested list “only for purposes connected with” the corporation in question.
47There is no suggestion that Lawrence failed to comply with these formal pre-conditions.
48The access to information right created by s. 307(1) of the Act has existed in Ontario’s companies’ legislation, in various forms, for decades.1 For example, s. 319(1) of The Corporations Act, R.S.O. 1960, c. 71 read as follows:
No shareholder or member or creditor or the agent or legal representative of any of them shall make or cause to be made a list of all or any of the shareholders or members of the corporation, unless he has filed with the corporation or its agent an affidavit of such shareholder, member or creditor in the following form, and, where the shareholder, member or creditor is a corporation, the affidavit shall be made by the president or other officer authorized by resolution of the board of directors of such corporation: [form of affidavit omitted] [emphasis added].
49As appears from this language, the right to access a list of a corporation’s shareholders or members under the 1960 statutory regime was confined to a prescribed class of persons, namely, the shareholders, members or creditors of the corporation or their agents or legal representatives.
50However, in 1966, s. 319 of the 1960 statute was amended and language identical to the current version of s. 307(1) was introduced by The Corporations Amendment Act, 1966, S.O. 1966, c. 28, s. 17. The effect of this amendment was to extend the right to access a corporation’s shareholder or membership list to “any person”, subject to the formal pre-conditions that I have described. This amendment formed part of a broader set of revisions to companies and securities legislation effected in 1966, with the aim of increasing disclosure of corporate information to shareholders and other investors: see Ontario, Legislative Assembly, Debates (16 March 1966) at 1574-78 (J. Yaremko); and Ontario, Ministry of the Attorney General, Report of the Attorney General’s Committee on Securities Legislation in Ontario (Toronto: 11 March 1965).
51More generally, recognition of the fundamental importance of access to corporate information to the exercise of investors’ and creditors’ rights is a cornerstone of corporate law in Canada. The policy rationales for such access have been described by F. Iacobucci, M.L. Pilkington & J.R.S. Pritchard, Canadian Business Corporations: An Analysis of Recent Legislative Developments (Agincourt: Canada Law Book, 1977) at 178-79 as follows:
Information is important for at least two basic reasons. First, it allows the shareholders and the securities market as a whole to evaluate the relative strengths and weaknesses of the enterprise so that they can make informed decisions as to whether or not to invest or continue to invest in the company. Second, only with adequate information are the shareholders able to evaluate effectively the performance of the corpor-ation’s directors and officers and to exercise their rights to have the directors and officers accountable for their misdeeds. In a dispute between a dissenting shareholder and those in control, the accessibility of information becomes a key factor as management’s ready access to the records of the company and other inside information gives it a distinct advantage over the individual shareholder who may be unable to substantiate his suspicions of wrongdoing with documentary proof.
52The significance of the access right established by s. 307(1) is underscored in the Act in two ways. First, s. 307(1) requires the prompt provision by a corporation of its shareholder or membership list upon request therefor. The list must be furnished within ten days after the filing, in proper form, of the affidavit contemplated under s. 307(2) of the Act. Second, s. 307(5) provides that a corporation’s failure to produce the requested list in accordance with s. 307(1) when so required is an offence, punishable on conviction by the imposition of a fine upon the corporation and, in certain circumstances, upon the corporation’s directors or officers personally.
53These provisions of the Act reflect the importance assigned by the legislature to the ability to access shareholder or membership information.
54The scheme of s. 307 also provides safeguards to the corporation and its shareholders or members against the improper use of the information contained in a shareholder or membership list furnished under s. 307(1). Section 307(4) essentially provides that anyone who uses such a list for the purpose of promoting the sale of securities other than those issued by the corporation, or for “any purpose not connected with the corporation”, is guilty of an offence, punishable on conviction by the imposition of a fine of not more than $1000. The phrase “purposes connected with the corporation” is defined in s. 307(6) of the Act to include an effort to influence voting by shareholders or members of a corporation, among other matters.
55Section 307 does not explicitly require, as a pre-condition to the exercise of the right to obtain a membership list under s. 307(1), that either the corporation or the court be satisfied that the information contained in the list will be used for “purposes connected with the corporation”. Rather, s. 307(2) requires that the deponent of the affidavit filed to initiate the access request confirm in the affidavit that the list is required and will be used “only for purposes connected with” the corporation. Swearing a false affidavit under s. 307(2) exposes the deponent of the affidavit to consequent prosecution and the risk of financial penalty under s. 307(4) of the Act.2
56In my view, s. 307 of the Act creates a broad right of access to the shareholder or membership list of a corporation governed by the Act, consistent with the objective of ensuring the timely disclosure of corporate information, but tempered by constraints on the purpose for which such information is sought and the actual use to which the information contained in such lists may be put. Section 307(1), in my opinion, is intended to facilitate access to the shareholder or membership lists of companies governed by the Act, subject to the formal requirements of an access request set out in ss. 307(1) and (2) and the statutory safeguards against abuse of the information so obtained as provided by ss. 307(2) and (4) of the Act.
(ii) Application Judge’s Analysis of Section 307
(a) Controlling principles of statutory interpretation
57Lawrence argues that the application judge erred in her analysis of s. 307 of the Act by failing to consider and apply the controlling principles of statutory interpretation set out in Rizzo, supra, and related jurisprudence.
58It is true that the application judge did not refer to the scheme of s. 307 as a whole and to the purpose of s. 307(1), in particular, in her reasons. Nor did she expressly mention the wide ambit of the access right established by s. 307(1) of the Act, to which I have previously referred.
59While it would have been preferable for the application judge to explicitly address the relevant principles of statutory interpretation in her reasons, there is no clear indication on this record that she ignored or misdirected herself concerning these principles. Trial judges, including those sitting as application judges in civil matters, are presumed to know the law and to apply the governing legal principles to the issues raised in the light of the facts of the particular case. Accordingly, I would not give effect to this ground of appeal.
(b) Inquiry into Lawrence’s future communications with members of the Society
60In his factum filed with this court, Lawrence argued that the access right established by s. 307(1) of the Act is ‘absolute’ in the sense that, once the formal pre-conditions to its exercise are satisfied, the entitlement to obtain a corporation’s shareholder or membership list is automatic and mandatory, without scope for any inquiry by the court as to whether the requested list, on the facts of a particular case, should be provided. Lawrence asserts, therefore, that the application judge erred by embarking on an inquiry regarding the basis for his access request under s. 307(1) and his intended use of the membership list when the list was provided.
61In particular, Lawrence maintained that s. 307 does not require a person seeking access to a membership list under s. 307(1) to justify, or even to explain, the access request. Section 307, he contends, does not contemplate that an applicant under s. 307(1) will have his or her intended communications with other members, consequent upon the delivery and use of the membership list, “vetted in advance by the Court, where management refuses to comply with its obligations”.
62I think that this argument is misconceived for several reasons. First, as I have emphasized, the application at issue was brought under s. 332 of the Act. Under that section, the court is vested with a broad discretionary remedial authority to make “such order” as it thinks fit in the circumstances of the case. In my view, the meaningful exercise of the court’s authority under s. 332 in a case like this one, where a failure to comply with s. 307(1) is asserted, contemplates a limited role for the court to scrutinize the basis upon which the failure to comply has occurred. In many (if not all) cases, this will involve consideration of the purpose for which the access request under s. 307(1) was made, with a view to the dual concepts contemplated by s. 307(2) of the Act, namely, present need for access to a membership list and future use of the list, both of which must be for “purposes connected with the corporation”.
63Second, as a charitable corporation, the Society is subject to the inherent supervisory jurisdiction of the court in charitable matters: see Re Public Trustee and Toronto Humane Society (1987), 1987 4192 (ON SC), 60 O.R. (2d) 236 (H.C.J.) at 242-44. Consequently, to the extent that Lawrence’s complaint regarding the Society’s response to his s. 307(1) access request involves an allegation that the Society failed to discharge a statutory duty, the court has equitable jurisdiction to assess the regularity of the Society’s actions.
64Third, contrary to the position taken by Lawrence in his factum regarding the task of a reviewing court on a s. 332 application related to an alleged breach of s. 307(1), Lawrence’s counsel candidly acknowledged during oral argument of this appeal that the court does enjoy authority to inquire into the purpose for which a s. 307(1) access request is made. Counsel argued, however, that this authority must be exercised judicially and in accordance with the scheme of s. 307 of the Act, in order to ensure that access to a membership list is not sought for a subsequent unlawful use. I agree.
65Fourth, as I have attempted to explain, the access right created under s. 307(1) of the Act is predicated on the need for and the intended use of a membership list for “purposes connected with the corporation”. Section 307(2) imposes, as a formal pre-condition to the exercise of the access right under s. 307(1), an obligation that the applicant swear an affidavit confirming that the requested membership list is required and will be used for “purposes connected with the corporation”. Moreover, s. 307(4) makes it an offence to use a membership list obtained under s. 307 for any other purpose.
66Thus, the requirement that an access request under s. 307(1) arise from “purposes connected with the corporation”, although not explicit in s. 307(1) itself, is implicitly mandated by the obligatory requirements of s. 307(2) and by the offence created under s. 307(4) of the Act.
67In these circumstances, where an access request is resisted on the basis that the request is allegedly made for an improper or unlawful purpose, (e.g. for a purpose that is not “connected with the corporation”), it is incumbent on the court on a s. 332 application to inquire into the purpose for which the membership list is sought, and the basis on which its disclosure has been denied, to determine whether the access request was made with the requisite connection with the corporation. If this narrow range of inquiry is impermissible, the court would be powerless to prevent access requests that are manifestly abusive or improper, short of an ‘after-the-fact’ prosecution of the applicant for breach of s. 307. I do not believe that this is the intent of s. 307. Nor do I understand Lawrence to have urged this interpretative outcome.
68Accordingly, I am not persuaded that the application judge erred by undertaking an inquiry into the anticipated content of Lawrence’s future communications with members of the Society, should the Society’s membership list be furnished to him.
69I note, in this regard, that the application judge distinguished this case from Rodgers v. Calvert (2004), 2004 22082 (ON SC), 244 D.L.R. (4th) 479 (Ont. S.C.) on the basis that the facts in Rodgers, unlike the facts of this case, involved a request to access a corporation’s membership list where there was “a genuine dispute between [the] members [of the corporation]” regarding a proposed real property transaction. On those facts, the application judge commented, “Therefore, Rodgers had the right to communicate his views to the balance of the members.”
70To the extent that this observation assumes that an access request under s. 307(1) can only succeed where it is made in respect of an ongoing dispute between the members of the corporation or the applicant and the corporation, I disagree. While the common law required a specific dispute, question or controversy in which the applicant was interested to ground a request to inspect a corporation’s membership list (see Bank of Bombay, supra), no such requirement appears in s. 307.
(c) Purpose of Lawrence’s access request
71I now turn to the question whether the application judge erred by concluding that Lawrence’s purpose in requesting access to the Society’s membership list was not “connected with” the Society. Lawrence submits that this factual finding is tainted by palpable and overriding error because it flowed from the application of the wrong legal test under s. 307 for the provision of access to a corporation’s membership list.
72In her reasons, when reciting the factual context of the application, the application judge stated:
4Lawrence alleges that he is concerned about the Society’s current management and board of directors. He alleges that he is concerned that the deteriorating relationship between management and the unionized employees will have a negative impact on the Society’s ability to fulfill its objects.
5Lawrence has requested a list of all members of the Society because he would like to raise his concerns with the members; the Society has refused to provide the list.
73Later in her reasons, the application judge referred to Lawrence’s concerns about the Society’s direction and the use of its funds to resist grievances commenced by the Union under the collective agreement applicable to the Society, as detailed in the record before the application judge. The application judge next noted the purpose of the Society as described in its constating documents and its mission statement, namely, “to promote and develop a humane public sentiment, and to secure the enactment and enforcement of suitable laws for the prevention of cruelty [to animals]” and to “promote the humane care and protection of all animals and to prevent cruelty and suffering”.
74The application judge then made the following key factual findings:
11Lawrence states that he believes that the Society might benefit from a change in management. Lawrence’s purpose in requesting the list is not for the benefit or the purposes of the Society. He wants to persuade the Society's members to apply pressure on the directors to capitulate in their dealings with the Union. In doing so, his purpose is to obtain a benefit for the Union, not for the Society [emphasis added].
75I agree with Lawrence that these findings are tainted by legal error, with the result that the application judge’s decision cannot stand. I reach this conclusion for the following reasons.
76The Society argued before the application judge, and it submits before this court, that the meaning of the phrase “purposes connected with the corporation” is determined by the expressed corporate and charitable purposes of the Society as set out in its constating legal documents and mission statement. The Society maintained, in effect, that these documents establish a complete code for the delineation of matters “connected with” the Society within the meaning of s. 307, and that any request for information from the corporation under s. 307(1) must be in the “best interests of the objects of the corporation”.
77The application judge accepted this argument. She reasoned:
13If Lawrence's reasons were sufficient to fall within the "purposes" of the Society, then a dog food manufacturer should also be able to obtain the list. After all, if the Society does not buy a particular brand of dog food, it could be argued that the Society and the dogs for which it cares will be detrimentally affected.
14Members of a non-share capital corporation would want other members to inform them about issues that vitally affect the well-being of the corporation. They would not want a person, such as Lawrence (a "Lobbyist"), who signs up as a member in the capacity of a Trojan horse, to be able to lobby the members to benefit the Lobbyist's own economic interests, interests that have nothing to do with the Society or, worse yet, are adverse to the interests of the Society.
78Thus, the application judge’s decision was premised on the need for Lawrence to demonstrate a link between his purpose in seeking to access and use the Society’s membership list and the objects and purposes of the Society itself. By equating the requirement under s. 307 that an access request under s. 307(1) be for “purposes connected with the corporation” to a requirement for proof that the purpose of the access request accord with the stated objects and purposes of the Society, the application judge essentially concluded that the purpose of a s. 307(1) access request must be in furtherance of the best interests of the affected corporation. This is not the test under s. 307 for access to a membership list under s. 307(1).
79That this was the application judge’s approach is evident from her references to the corporate and charitable objects and purposes of the Society, her finding that Lawrence’s “purpose in requesting the list is not for the benefit or the purposes of the Society”, and her observations that members of a non-share capital corporation “would want other members to inform them about issues that vitally affect the well-being of the corporation” and that they would not wish to be ‘lobbied’ by a member whose interests “are adverse to the interests of the Society”.
80In my opinion, with respect, this approach misconceives the legal test under s. 307 for the provision of a corporation’s membership list under s. 307(1) in several important respects.
81First, there is nothing in s. 307 to suggest that the proof of a link between an access request under s. 307 (1) and the articulated corporate and charitable objects and purposes of the corporation in question is a pre-condition to the entitlement to access a membership list under s. 307(1). Nor is there anything in s. 307 to suggest that a corporation’s expressed objects and purposes circumscribe the intended meaning of the phrase “purposes connected with the corporation”, as employed throughout s. 307.
82Second, and importantly, the application judge’s approach is inconsistent with the expansive reach of the phrase “purposes connected with the corporation” as used in s. 307. Section 307(6) of the Act defines the phrase “purposes connected with the corporation” in inclusionary and non-exhaustive terms.
83As well, according to its ordinary dictionary meaning, the word “connected” enjoys a wide construction. It is defined in the Oxford English Reference Dictionary, 2d ed. (Oxford: Oxford University Press, reprint 2001) (1996) at 305 as “1. joined in sequence. 2. (of ideas etc) coherent. 3. related or associated”.
84Judicial consideration of the scope of the phrase “connected with” or “connected to” is to the same effect. Recently, in Mantini v. Smith Lyons LLP (2003), 2003 20875 (ON CA), 64 O.R. (3d) 505, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 344, this court considered the meaning of a contractual requirement that any dispute “in connection with” a partnership agreement be referred to arbitration for resolution. Justice Feldman, writing for the court, stated at para. 19:
In the case of Denison Mines Ltd. v. Ontario Hydro, [1981] O.J. No. 807 (Q.L.) (Div. Ct.), the court interpreted the words “arising in connection with” as having “a very broad meaning”. The court referred to the House of Lords decision in Heyman v. Darwins, [1942] A.C. 356, [1942] 1 All E.R. 337 (H.L.) where Lord Porter stated at p. 399 A.C, that the words “ ‘arising out of’ … have a wider meaning” than “under”. The Divisional Court went on to hold that “the words ‘arising in connection with’ are at least as wide as the words ‘arising out of’ and have a very broad meaning” (para. 15). I agree with these interpretations and in particular with the conclusion that the phrase “in connection with” has a very broad meaning. In my view, it has a broader scope than the phrase “out of”, as the dispute need only be connected with the Partnership Agreement, even if it does not arise from or out of a specific provision of the agreement.
85A similar approach was adopted in Toronto Transit Commission v. Ontario (Regional Assessment Commissioner, Region No. 9) (1994), 23 M.P.L.R. (2d) 66 (Ont. Gen. Div.) in the context of determining the scope of a tax exemption clause under an Ontario municipal taxing statute, exempting from tax lands or easements used “for [a stipulated] purpose” or “in connection with” certain forms of transit. In that case, Lederman J. commented at paras. 9 and 14:
The two phrases, “for the purpose of” and “in connection with” which qualify the use of the land in order to attract the two exemptions within s. 120(1), are commonly found in taxation legislation. One is clearly broader than the other. This was pointed out by Campbell J. in Kitchener-Waterloo Real Estate Board Inc. v. Regional Assessment Comm-issioner, Region No. 21 et al. (1986), 1986 2660 (ON SC), 32 M.P.L.R. 1 at 11 (H.C.J.) as follows:
The respondent suggests that the words “in connection with” are broader than the words “for the purpose of” and says that even if the activity is not caught by the latter, it is caught by the former. This is an accurate interpretation of the plain meaning of the words of the statute. The word “connection” simply means that there is some relationship between two things or activities – that they have something to do with each other. The relationship need not be purposive to constitute a connection. Many activities might be carried out in connection with a particular object, as integrally related activities, without being carried out for the purpose of that object [emphasis added].
86I agree with Lawrence that, by requiring him to establish that the reason for his access request and the intended use by him of the Society’s membership list was to benefit or further the interests of the Society, the application judge adopted a “highly restrictive” construction of the access scheme envisaged by s. 307. In particular, the application judge’s approach to the meaning of the phrase “connected with” is not supported by the ordinary meaning of that phrase or with the manner in which it has been interpreted by Ontario courts.
87In my view, under the scheme of s. 307, the phrase “connected with the corporation” requires only a showing that there is a good faith reason for an access request under s. 307(1) that is related to or associated with the corporation in some legitimate fashion. This may, but need not, include a purpose directly linked to the corporation’s formal objects and purposes as reflected in its constating and other corporate documents.
88There may well be cases where an access request under s. 307(1) of the Act is improper, or abusive of the affected corporation or its members. For example, such a case might arise where the purpose of the access request and its intended future use are related solely to the personal interests or objectives of the applicant and are unrelated to the interests or concerns of the corporation or its membership as a whole. In this event, on a proper record, a dissonance between the access request and the corporation may be established. In other words, notwithstanding the expansive ambit of the definition of “purposes connected with the corporation” set out in s. 307(6) of the Act, the purpose for the access request may be found to be ‘unconnected’ with the corporation.
89But that is not this case. The record here indicates that access to the Society’s membership list was sought by Lawrence to permit him to advocate with other Society members, on behalf of the Society’s unionized employees, for changes to the management and general labour relations policies and practices of the Society. This purpose, although perhaps unwelcome to the management of the Society, affects the Society’s membership as a whole and, hence, is clearly related to or associated with the Society. The fact that Lawrence acted in the interests of the unionized employees of the Society in making his access request does not mean that the basis for his request was unconnected to the Society.
90Moreover, the application judge herself recognized that members of a non-share capital corporation “would want other members to inform them about the assets of the corporation”. The funds received by the Society from donors form part of the ‘assets’ or revenues of the Society. Lawrence’s main concern regarding the Society was that, as part of the general policy adopted by the Society’s current leadership to labour relations issues, the Society’s funds, including donations, were being used to finance a grievance policy with which he disagreed. This use of the Society’s funds is a matter squarely “connected with” the Society.
91The Society relies on three cases from the United States to support the application judge’s holding that an access request under s. 307(1) of the Act must be for a purpose that is in the best interests of the corporation, as measured by reference to the corporation’s objects and purposes: Charles A. Pillsbury v. Honeywell, Inc. (1971), 291 Minn. 322 (S.C.); Santuccio v. Rochester Civic Music Association, Inc. (1972), 334 N.Y.S. 2d 67 (S.C.); and Mayer v. National Arts Club (1993), 596 N.Y.S. 2d 537 (S.C. App. Div.).
92I am not convinced that these cases assist in determining the scope of the access right provided for under s. 307(1) of the Act. The cited cases arise: in the context of different statutory regimes for the provision and control of access to and the use of corporate information; under legislation the language of which differs from that employed in the Act; and in a jurisdiction where shareholders’ rights to access corporate information (as distinct from the rights of directors) have been the subject of considerable litigation and divergent judicial opinion: see for example, K.P. McGuinness, The Law and Practice of Canadian Business Corporations, (Toronto and Vancouver: Butterworths, 1999) at 905.
93Thus, for example, in Pillsbury, the Supreme Court of Minnesota dismissed an appeal from an order denying the request of a petitioning shareholder for access to Honeywell, Inc.’s shareholder ledger and other corporate documents on the basis that the statute at issue permitted such access only where the purpose of the requested access concerned the “investment motivation” or economic interests of the petitioning shareholder.
94In contrast, s. 307 of Ontario’s Act contains no language confining the s. 307(1) access right to circumstances related to the applicant’s own financial or economic interests. Indeed, the use in s. 307(1) of the phrase “any person” necessarily contemplates that an applicant under s. 307(1) need not be an existing or even prospective shareholder or member of the affected corporation. It follows that the purpose of a s. 307(1) access request need not be tied to the applicant’s status as a shareholder or member of the corporation, or to his or her financial or economic interests.
95The Society also relies upon the above-quoted cases in support of the proposition that an access request under s. 307(1) of the Act is improper where the request is intended to further some political or social interest of the applicant that is unrelated to the investment interests of the applicant or the economic well-being of the affected corporation.
96Although I would not exclude the possibility that this argument might prevail in a proper case, that is not this case. The Society has not established that Lawrence’s access request is in any sense unlawful; nor does the Society suggest that Lawrence’s access request contravenes the collective bargaining regime in place between the Society and the Union, or that it relates to a matter that could not properly be the subject matter of a vote at a meeting of Society members.
97As I have indicated, the record establishes that the purpose of Lawrence’s access request is related to or associated with the management and labour relations policies and practices of the Society. This is a legitimate purpose “connected with” the Society. The fact that Lawrence’s ultimate use of the Society’s membership list may (but also may not) result in financial advantage to the Union (by reducing its costs of prosecuting pending grievance proceedings), as well as benefit to the Society’s unionized members (by influencing the response to or outcome of grievance proceedings) does not produce a ‘disconnect’ with the Society itself. To the contrary, in my view, it reinforces the nexus between the basis for the access request and the anticipated use of the membership list, on the one hand, and the Society, on the other.
98In this regard, I note that in Mayer, supra, the Supreme Court of New York, Appellate Division stated at p. 539:
Ill feelings and a desire to change respondent’s management and policies do not render petitioners’ request improper, nor do efforts to communicate with the members and to investigate the conduct of management. If, however, the driving motive is personal gain completely apart from a purpose of respondent, the denial of access to respondent’s membership list would not be improper [citations omitted] [emphasis added].
99Third, as I have also stated, the application judge anchored her finding that Lawrence’s purpose in seeking access to the Society’s membership list was to obtain “a benefit for the Union, not for the Society” on her view of Lawrence’s motive in seeking to use the Society’s membership list to communicate with the Society’s other members, rather than on the actual use to which the list would be put.
100In EnCana Corp. v. Douglas (2005), 2005 ABCA 439, 11 B.L.R. (4th) 198, the Alberta Court of Appeal considered a shareholder’s request pursuant to s. 21 of the CBCA for access to EnCana Corporation’s shareholder list. As I have mentioned, s. 21 of the CBCA allows a shareholder of a corporation and other identified persons to require a corporation governed by the CBCA to disclose a copy of its shareholder list upon payment of a fee and the filing of an affidavit in prescribed form. Under s. 21(9) of the CBCA, however, the list may only be used “in connection with” an effort to influence shareholder voting, an offer to acquire securities issued by the affected corporation, or “any other matter relating to the affairs of the corporation”. Like s. 307 of the Act, s. 21(10) of the CBCA creates an offence for the misuse of information contained in a shareholder list.
101In considering the relevant provisions of the access scheme set out under the CBCA, the Alberta Court of Appeal observed in EnCana at para. 37:
[T]he chambers judge confused motive with use. Section 21(9) [of the CBCA] does not address motive but states that the information from “a securities register…shall not be used…”. Douglas may have financial gain as his motive but that is irrelevant. One must look to the use of the information. It is important to recognize that there is a difference between the purpose in using the list (e.g. to contact other shareholders) with the personal motive (e.g. to make money or to reorganize the corporation) [underlined emphasis in original; italicized emphasis added].
These comments are apposite here.
102Finally, the effect of the application judge’s decision was to foreclose the possibility that, once obtained and notwithstanding Union-related reasons by Lawrence for initiating his request for access to the Society’s membership list, the list would be used by him for a purpose also connected with the Society. Merely because an applicant under s. 307(1) and the corporation in question are potentially or actually adverse in interest does not mean that the applicant cannot use the list in a manner connected with the corporation.
103Indeed, the facts of this case support the opposite conclusion. Lawrence sought to access the Society’s membership list to communicate with other members with the view to effecting change within the Society related to management and labour relations issues. Absent consensual or voluntary changes by the Society’s management and directors, this could only be achieved by the vote of Society members. Thus, this use of the Society’s membership list, if realized, is a use envisaged by s. 307(6): it involves an anticipated effort to influence voting by the members of the Society. Accordingly, it is a permitted and unobjectionable use of the membership list.
104In summary, I conclude that the application judge erred in her approach to the legal test under s. 307 for the determination of whether Lawrence was entitled to receive a copy of the Society’s membership list under s. 307(1). This error fatally tainted her central finding that Lawrence’s purpose in seeking the list was not “connected with” the Society.
(d) Freedom of expression
105As I have already concluded that the application judge’s interpretation of s. 307 of the Act was legally flawed for the reasons given, it is not necessary to address Lawrence’s additional argument that the application judged also erred by failing to apply the common law in a manner consistent with the values enshrined in the Charter. However, I offer these observations. Lawrence’s Charter-based argument (which does not involve any allegation of a Charter breach) was raised for the first time on this appeal. As a result, it was not addressed by the parties or by the application judge on Lawrence’s application. In these circumstances, the record before this court does not assist this court in entertaining this submission at this late stage.
VI. Disposition
106Accordingly, I would allow the appeal, set aside paragraphs one and two of the application judge’s judgment and substitute in their stead an order that Lawrence is entitled to receive a copy of the Society’s membership list as at September 30, 2004, in the form set out in s. 307(1) of the Act, within ten days from the date of this decision.
107Lawrence is entitled to his costs of the application, in the amount of $18,000 as fixed by the application judge, if sought. He is also entitled to his costs of this appeal on a partial indemnity basis, fixed in the total amount of $8,500, also if sought.
RELEASED: “JMS” June 16, 2006
“E.A. Cronk J.A.”
“I agree. J.M. Simmons J.A.”
“I agree. P.S. Rouleau J.A.
Footnotes
- Section 21 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (the “CBCA”) and s. 146 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (the “OBCA”) create rights of access to the shareholder lists maintained by corporations governed by those statutes. These provisions differ from s. 307 of the Act in important respects. For example, under s. 146(1) of the OBCA, the relevant access right may be exercised only by the shareholders and creditors of a corporation, their agents and legal representatives and, where the corporation is an “offering corporation” within the meaning of the OBCA, by “any other person”. Pursuant to s. 146(8) of the OBCA, a list of shareholders obtained under s. 146 cannot be used except in connection with, (a) an effort to influence the voting by shareholders of the corporation, (b) an offer to acquire shares of the corporation, or (c) any other matter relating to the affairs of the corporation [emphasis added]. The applicable provisions of the CBCA are similarly worded.
- In addition, s. 330(1) of the Act provides that it is an offence, punishable on conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or to both, to make or assist in making a statement in a document required by or for the purpose of the Act, knowing it to be untrue.
