BILL 36
Invest New Brunswick Act
Her Majesty, by and with the advice and
consent of the Legislative Assembly of New Brunswick, enacts as follows:
DEFINITIONS
Definitions
1 The
following definitions apply in this Act.
“Board” means the board of
directors of Invest NB. (conseil)
“Chair” means the Chair of
the Board. (président)
“Chief Executive Officer” means
the Chief Executive Officer of Invest NB. (directeur général)
“Executive Committee” means
the Executive Committee of the Board. (comité exécutif)
“financial assistance” includes
assistance by way of loan, loan guarantee, grant or the purchase or
acquisition of any common or preferred shares or other equity securities,
including, but not limited to, venture capital investments. (aide
financière)
“Invest NB” means the body
corporate established under section 2 under
the name Invest New Brunswick. (Investir N.-B.)
“Minister” means the member
of the Executive Council designated by the Lieutenant-Governor in
Council to administer this Act. (ministre)
“Vice-Chair” means the Vice-Chair
of the Board. (vice-président)
INVEST NEW BRUNSWICK
Establishment of Invest New Brunswick
2 There
is established a body corporate, without share capital, to be known
as Invest New Brunswick consisting of those persons who comprise the
Board.
Head office
3(1)
The head office of Invest NB shall be at the location in New Brunswick
that is designated by the Board in the by-laws.
3(2)
A by-law referred to in subsection (1) is ineffective until it has
been approved by the Minister.
Objects and purposes
4 The
objects and purposes of Invest NB are
(a) to
attract new investment to New Brunswick in accordance with the strategic
directions set out in Invest NB’s business plan through
(i) the promotion of New Brunswick as
an attractive location for investment, and
(ii) the identification and pursuit of
opportunities for strategic and commercially viable investments in
new and existing growth-oriented businesses located or intending to
locate in New Brunswick as well as any subsequent negotiation and
financing of offers of financial assistance,
(b) to
prudently manage its portfolio of investments, and
(c) to
carry out any other activities or duties that the Lieutenant-Governor
in Council directs.
Powers
5 Subject
to this Act and the regulations, Invest NB has, in respect of its
objects and purposes, the capacity, rights, powers and privileges
of a natural person and, without limitation, may
(a) with
the approval of the Minister, provide financial assistance on the
terms and conditions that it considers appropriate,
(b)
receive, acquire, take, hold, mortgage, sell, convey or otherwise
dispose of or deal with real and personal property and any interest
in real and personal property,
(c) enter
into an agreement with the Government of Canada or the government
of a jurisdiction outside New Brunswick or a municipality, a rural
community or any other person, and
(d) do
any other things that are required or authorized by this Act or the
regulations or that Invest NB considers necessary or incidental to
the attainment of its objects and purposes.
Agent of Her Majesty in right of New Brunswick
6 Invest
NB is for all purposes an agent of Her Majesty in right of New Brunswick.
BOARD
Role of Board
7(1)
The Board shall administer the business and affairs of Invest NB,
and all decisions and actions of the Board are to be based generally
on sound business practice.
7(2)
For the purpose of administering the business and affairs of Invest
NB, the Board may exercise all the powers of Invest NB.
Composition
8(1)
The Board shall consist of
(a) the
Chief Executive Officer,
(b) the
Deputy Minister of Business New Brunswick or his or her designate,
and
(c) not
fewer than eight and not more than ten other members.
8(2)
A member of the Board referred to in paragraph (1)(c) shall be appointed by the Lieutenant-Governor
in Council from outside the Public Service as defined in the Public Service Labour Relations Act and
shall meet the criteria, if any, that the Board has established in
the by-laws.
Term of office and vacancies
9(1)
A member of the Board referred to in paragraph 8(1)(c) shall be appointed for a term
not exceeding three years and may, subject to subsection (8), be reappointed.
9(2)
Subject to subsections (7) and (8), a member of the Board referred
to in paragraph 8(1)(c) remains in office despite the
expiry of his or her term until the member resigns or is reappointed
or replaced.
9(3)
Subject to subsection (8), if a member of the Board who remains in
office as a result of the application of subsection (2) is reappointed,
the appointment shall be for a term ending not later than three years
from the date of the expiry of the previous term.
9(4)
A vacancy on the Board does not impair the capacity of the Board to
act.
9(5) If a member of the Board referred to
in paragraph 8(1)(c) fails to attend three regular
meetings of the Board in a 12-month period without, in the opinion
of the Board, reasonable cause, the Board may declare the member’s
position vacant.
9(6)
In the case of the temporary absence or inability to act of a member
of the Board referred to in paragraph 8(1)(c), the Lieutenant-Governor in Council
may appoint a substitute for the member for the period of the temporary
absence or inability to act.
9(7)
A member of the Board referred to in paragraph 8(1)(c) may be removed for cause by the
Lieutenant-Governor in Council.
9(8)
No person is eligible to serve as a member of the Board referred to
in paragraph 8(1)(c) for more than nine years, whether
consecutively or otherwise.
9(9)
For the purposes of subsection (8), time served as a substitute appointed
under subsection (6) shall count as time served as a member of the
Board referred to in paragraph 8(1)(c).
Chair and Vice-Chair
10 The
Lieutenant-Governor in Council shall appoint from among the members
of the Board referred to in paragraph 8(1)(c) a Chair and a Vice-Chair who
shall hold office as such for a term to be fixed by the Lieutenant-Governor
in Council.
Secretary
11 The
Board shall appoint an employee of Invest NB to be the secretary of
the Board who shall perform the duties and functions directed by the
Board.
Meetings and quorum
12(1)
A majority of the members of the Board, including the Deputy Minister
of Business New Brunswick or his or her designate, constitutes a quorum.
12(2)
Subject to subsection (3), the Chair or, in his or her absence, the
Vice-Chair shall preside at the meetings of the Board.
12(3)
If the Chair and Vice-Chair are absent from a meeting of the Board,
the members present may elect from among themselves a person to preside
at the meeting.
12(4)
Decisions of the Board are to be made by majority vote of the members
present, and, in the event of a tie vote, the Chair or other person
presiding at the meeting shall cast the deciding vote.
12(5)
The Board shall meet at least four times in each fiscal year.
12(6)
The Board shall ensure that minutes of each of its meetings are taken
and that the minutes, once approved by the Board and certified to
be correct by the secretary of the Board, are submitted to the Minister.
Executive Committee
13(1)
The Board may, by by-law, establish an Executive Committee consisting
of
(a) the
Chief Executive Officer,
(b) the
Chair,
(c) the
Deputy Minister of Business New Brunswick or his or her designate,
and
(d) any
other members who are appointed or elected by the Board from among
its members in accordance with the by-laws and who meet the criteria,
if any, established by the Board in the by-laws.
13(2)
The Board may make by-laws respecting
(a) the
operation and dissolution of the Executive Committee,
(b) the
term of office and removal of members of the Executive Committee and
the filling of vacancies among members of the Executive Committee,
and
(c) the
time and place for the holding of meetings of the Executive Committee
and the procedure at the meetings.
13(3)
The Board may, by by-law, delegate to the Executive Committee any
of the powers of Invest NB that relate to its financial assistance
activities under this Act or any of the powers of Invest NB that the
Board considers to be necessary for carrying out those financial assistance
activities, including, but not limited to, the powers under paragraph 5(a),
(b) or (c) or section 25 or 27.
13(4)
A majority of the members of the Executive Committee, including the
Deputy Minister of Business New Brunswick or his or her designate,
constitutes a quorum.
13(5)
Subject to subsection (6), the Chair shall preside at the meetings
of the Executive Committee.
13(6)
If the Chair is absent from a meeting of the Executive Committee,
the members present may elect from among themselves a person to preside
at the meeting.
13(7)
Decisions of the Executive Committee are to be made by majority vote
of the members present, and, in the event of a tie vote, the Chair
or other person presiding at the meeting shall cast the deciding vote.
13(8)
A decision of the Executive Committee shall be deemed to be a decision
of the Board.
13(9)
Despite the establishment of an Executive Committee under this section,
the Board may also perform any power that it has delegated to the
Executive Committee.
EMPLOYEES
Chief Executive Officer
14(1)
The Chief Executive Officer of Invest NB shall be appointed as provided
for in this section.
14(2)
The first Chief Executive Officer shall be appointed by the Lieutenant-Governor
in Council for a term not exceeding five years.
14(3)
Each subsequent Chief Executive Officer shall be appointed by the
Board, with the approval of the Lieutenant-Governor in Council, for
a term not exceeding five years.
14(4)
A Chief Executive Officer may be reappointed, but no person is eligible
to serve as Chief Executive Officer for more than ten years, whether
consecutively or otherwise.
14(5)
The Chief Executive Officer is charged with the supervision, operation
and control of the business and affairs of Invest NB and may exercise
any other powers conferred on him or her by the Board in the by-laws.
14(6)
The Chief Executive Officer is, by virtue of the office, a non-voting
member of the Board and of the Executive Committee.
14(7)
The Chief Executive Officer may be suspended or removed from office
by the Board with the approval of the Lieutenant-Governor in Council.
14(8)
In the case of the temporary absence or inability to act of the Chief
Executive Officer, the Board may appoint a substitute for the Chief
Executive Officer for the period of the temporary absence or inability
to act.
14(9) For the purposes of subsection (4),
time served as a substitute appointed under subsection (8) shall count
as time served as the Chief Executive Officer.
Employees
15(1)
Despite section 5 of the Financial Administration Act, the
employees of Invest NB, other than the Chief Executive Officer, shall
be appointed in accordance with the staff requirements and mode of
appointment established by the Board in the by-laws.
15(2)
The Public Service Superannuation
Act applies to the Chief Executive Officer and all other employees
of Invest NB.
Closed competitions
16 A
person who is an employee within the meaning of the Civil Service Act may be a candidate
in a closed competition in relation to a position with Invest NB and,
in relation to a closed competition in which that person is a candidate,
has the status of an employee of Invest NB.
FINANCIAL MATTERS,
REPORTING AND TRUSTEE
Fiscal year
17 The
fiscal year of Invest NB begins on April 1 of one year and ends on
March 31 in the next year.
Annual business plan and budget
18(1)
Invest NB shall, not later than December 31 in each year, submit to
the Board of Management for approval a business plan for the next
fiscal year containing
(a) the
intended strategic direction of Invest NB,
(b) projected
key performance indicators, and
(c) a
proposed budget containing the estimates of the amounts required for
the operation of Invest NB for the next fiscal year.
18(2)
The Board of Management may
(a) approve
the business plan as submitted, or
(b) refer
the business plan back to Invest NB for further action, with any directions
the Board of Management considers appropriate.
18(3)
A business plan that is referred back to Invest NB under paragraph
(2)(b) shall be resubmitted
as directed by the Board of Management, and when it is resubmitted,
subsection (2) applies.
18(4)
If in any fiscal year it appears that the actual revenue or expenditure
of Invest NB is likely to be substantially greater or less than estimated
in its budget, Invest NB shall submit to the Board of Management a
revised budget containing the particulars required under paragraph
(1)(c).
Audit
19 The
financial statements of Invest NB shall be audited at least once a
year by an auditor appointed by Invest NB, and may be audited by the
Auditor General at any time on his or her initiative or on the request
of the Lieutenant-Governor in Council.
Audited financial statements
20 Within
two months after the end of each fiscal year, Invest NB shall submit
its audited financial statements to the Minister of Finance.
Reporting
21(1)
Within four months after the end of the fiscal year, Invest NB shall
submit an annual report to the Minister in the form that the Minister
requires containing
(a) the
auditor’s report and the audited financial statements,
(b) the
key performance indicators relating to that fiscal year, and
(c) any
other information required by the Minister in respect of the business
and affairs of Invest NB during that fiscal year.
21(2)
The Minister shall lay the report before the Legislative Assembly
if it is in session or, if it is not in session, within ten days after
the commencement of the next ensuing session.
21(3)
Invest NB shall provide to the Minister any information in respect
of the business and affairs of Invest NB that the Minister requests.
Appointment of trustee
22(1)
The Minister may at any time, by order, appoint a person as a trustee
to act in place of the voting members of the Board if, in the opinion
of the Minister,
(a) the
Board is not properly carrying out its responsibilities, duties or
powers under this Act or the regulations,
(b) the
Board fails to comply or ensure that Invest NB complies with any provision
of this Act or the regulations, or
(c) it
is in the public interest.
22(2)
On the appointment of a trustee, the voting members of the Board cease
to hold office and shall not perform any duties or exercise any powers
conferred on them under this Act or the regulations.
22(3)
A trustee has all the responsibilities, duties and powers of the Board
and shall receive the remuneration and reimbursement of expenses determined
by the Minister.
22(4)
If a trustee is appointed, the former voting members of the Board
shall immediately deliver to the trustee all books, records and documents
respecting the management and activities of Invest NB.
22(5)
If, in the opinion of the Minister, a trustee is no longer required,
the Minister may terminate the appointment of the trustee on the terms
and conditions that the Minister considers advisable.
FINANCIAL ASSISTANCE
Application
23(1)
An application for financial assistance shall be made in accordance
with the regulations and shall contain the information prescribed
by regulation and any other information required by Invest NB.
23(2)
A decision of the Board or the Executive Committee with respect to
an application for financial assistance is final and may not be questioned
or reviewed in any court.
Approval required
24(1)
Unless it obtains the approval of the Lieutenant-Governor in Council,
Invest NB shall not provide financial assistance to a person if the
sum of the following exceeds the amount prescribed by regulation:
(a) the
financial assistance sought by the person;
(b) all
financial assistance previously provided to the person and not repaid;
and
(c) all
financial assistance that Invest NB has decided to provide to the
person but has not yet provided.
24(2)
If the Lieutenant-Governor in Council grants an approval for the provision
of financial assistance, the Lieutenant-Governor in Council may require
that Invest NB impose specified terms and conditions on the provision
of the financial assistance.
Taking of security
25(1)
Invest NB may take any security that it considers appropriate for
any financial assistance provided under this Act and may enforce the
security in accordance with its terms or release the security on terms
and conditions that Invest NB specifies.
25(2)
Invest NB may, in carrying out the enforcement of security held under
this section, make an advance of money to a receiver, guarantee the
accounts of a receiver, pay or guarantee a payroll of a business in
default under the security and expend money in attracting a person
to revive, take over or re-establish the business.
Annual charge
26 Any
person who receives financial assistance under this Act shall pay
to Invest NB an annual charge in accordance with the terms and conditions
prescribed by regulation.
Amending terms and conditions
27(1)
Subject to subsection (2), Invest NB may, with the approval of the
Minister, amend the terms or conditions of any financial assistance
provided under this Act, including, without limitation, by extending,
deferring, adjusting or compromising the time for repayment of financial
assistance or by forgiving any or all of the principal and any or
all of the interest of a loan provided under this Act.
27(2)
Terms and conditions referred to in subsection 24(2)
shall not be amended by Invest NB without the approval of the Lieutenant-Governor
in Council.
Debt deleted from assets
28 Despite
the Financial Administration Act,
if a debt due is forgiven under this Act, that debt shall be deleted
from the assets of Her Majesty in right of New Brunswick.
Quarterly reports
29 Invest
NB shall, as soon as possible after March 31, June 30, September 30
and December 31 in each year, report to the Board of Management on
all financial assistance provided under this Act during the preceding
three months.
GENERAL PROVISIONS
By-laws
30(1)
In addition to any other by-laws authorized or required to be made
under this Act and subject to this Act, the Board may make by-laws
for the control and management of the business and affairs of Invest
NB, including, but not limited to, by-laws respecting
(a) the
establishment, composition, operation and dissolution of committees
of the Board,
(b) the
term of office and removal of members of a committee established under
paragraph (a) and the filling
of vacancies among members of the committee,
(c) the
time and place for the holding of meetings of the Board or of a committee
established under paragraph (a)
and the procedure at the meetings,
(d) subject
to any applicable collective agreement and despite section 5 of the Financial
Administration Act, the remuneration, rate of reimbursement
for expenses and other conditions of employment of the Chief Executive
Officer and other employees of Invest NB and their functions and duties,
(e) the
remuneration and rate of reimbursement for expenses of members of
the Board referred to in paragraph 8(1)(c),
(f) the
appointment of an auditor, and
(g) the
determination of the corporate seal of Invest NB.
30(2)
The Board shall make by-laws establishing the policy of Invest NB
in respect of situations considered by the Board to constitute an
actual or potential conflict of interest pertaining to the members
of the Board, including, but not limited to, the circumstances that
constitute an actual or potential conflict of interest, the disclosure
of the actual or potential conflict of interest and the manner in
which it is to be dealt with.
30(3)
A by-law made under paragraph (1)(d)
or (e) or subsection (2) is
ineffective until it has been approved by the Lieutenant-Governor
in Council.
Inapplicability of Regulations Act
31 The Regulations Act does not apply to
any by-law made under this Act.
Filing of by-laws
32 The
Board shall file any by-law made under this Act with the Minister
as soon as possible after it is made.
Immunity
33 No
action lies for damages or otherwise against any of the following
persons in relation to anything done or purported to be done in good
faith, or in relation to anything omitted in good faith, under this
Act by the person:
(a) the
Chief Executive Officer or a former Chief Executive Officer;
(b) any
other member or former member of the Board; and
(c) any
employee or former employee of Invest NB.
Indemnity
34 The
following persons shall be indemnified by Her Majesty in right of
New Brunswick against all costs, charges and expenses incurred by
him or her in relation to any action or other proceeding brought or
prosecuted against him or her in connection with the duties of the
person and with respect to all other costs, charges and expenses that
he or she incurs in connection with those duties, except costs, charges
and expenses that are occasioned by that person’s own wilful
neglect or wilful default:
(a) the
Chief Executive Officer or former Chief Executive Officer;
(b) any
other member or former member of the Board;
(c) any
employee or former employee of Invest NB; and
(d) the
heirs and legal representatives of the persons referred to in this
section.
Regulations
35 The
Lieutenant-Governor in Council may make regulations
(a) prescribing
industrial, commercial or business activities that may not be granted
financial assistance under this Act;
(b) respecting
the circumstances under which financial assistance may not be granted
under this Act;
(c) prescribing
an amount for the purposes of section 24;
(d) respecting
annual charges and the terms and conditions applicable to annual charges;
(e) respecting
an adjustment, deferment, reduction or waiver by Invest NB of the
annual charges referred to in paragraph (d)
and alterations by Invest NB of the terms and conditions referred
to in paragraph (d);
(f) respecting
the charging of interest and the rates of interest on loans provided
under this Act, including, but not limited to, authorizing Invest
NB to charge interest at a rate it determines;
(g) respecting
the form and manner of application for financial assistance and prescribing
information to be contained in an application;
(h) defining
any word or expression used in but not defined in this Act for the
purposes of this Act, the regulations or both;
(i)
respecting any matter that the Lieutenant-Governor in Council considers
necessary for the administration of this Act.
CONSEQUENTIAL AMENDMENTS AND
COMMENCEMENT
Auditor General Act
36 Section
1 of the Auditor General Act, chapter A-17.1 of the Acts of New Brunswick,
1981, is amended in the definition “agency of the Crown”
by adding after paragraph (g.3) the following:
(g.31) Invest New Brunswick,
Proceedings Against
the Crown Act
37 Section
1 of the Proceedings Against the Crown Act, chapter P-18 of the Revised
Statutes, 1973, is amended in the definition “Crown corporation”
by adding “Invest
New Brunswick,” after “Energy
Efficiency and Conservation Agency of New Brunswick,” .
Public Service Labour
Relations Act
38 The
First Schedule of the Public Service Labour Relations Act, chapter
P-25 of the Revised Statutes, 1973, is amended in Part I by adding
after
Executive Council Office
the following:
Invest New Brunswick
Right to Information
and Protection of Privacy Act
39 Schedule
A of the Right to Information and Protection of Privacy Act, chapter
R-10.6 of the Acts of New Brunswick, 2009, is amended in section 1
by adding after
Algonquin
Properties Limited | Chair |
the following:
Invest New Brunswick | Chief Executive Officer |
Commencement
40 This Act or any provision of it comes into
force on a day or days to be fixed by proclamation.