O. Reg. 376/18: SECTION 28 EXEMPTIONS - COLLEGES

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Financial Administration Act

ONTARIO REGULATION 376/18

SECTION 28 EXEMPTIONS - COLLEGES

Consolidation Period: From May 7, 2018 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

Definitions and interpretation

1. (1) In this Regulation,

“annualized value” means the total value of an agreement divided by the number of years or partial years in the term of the agreement, not including any extensions to the term of the agreement; (“valeur annualisée”)

“capital agreement” means an agreement, or the portion of an agreement, entered into by a college that is for the acquisition, construction or disposition of capital assets, including capital leases and such capital assets as are reported in the financial statements of the college, and includes any agreement connected to the transaction to which the capital agreement relates; (“accord visant des immobilisations”)

“college” means a college of applied arts and technology established under the Ontario Colleges of Applied Arts and Technology Act, 2002 or a subsidiary of such a college; (“collège”)

“financing agreement” means a loan, mortgage or other agreement, or a portion of such an agreement, entered into by a college to raise funds for the college or improve the college’s liquidity by promising to repay a lender, with interest, and includes any agreement connected to the transaction to which the financing agreement relates; (“accord de financement”)

“operating agreement” means an agreement, or the portion of an agreement, entered into by a college that is necessary for the ongoing operations of the college, and includes any agreement connected to the transaction to which the operating agreement relates, but does not include a financing agreement or a capital agreement. (“accord de fonctionnement”)

(2) A college has an accumulated deficit if the sum of the unrestricted net assets, internally restricted net assets and investments in capital assets of the college, as reported in the most recent audited financial statements of the college, is less than or equal to zero.

(3) A college has an accumulated surplus if the sum of the unrestricted net assets, internally restricted net assets and investments in capital assets of the college, as reported in the most recent audited financial statements of the college, is greater than zero. 

(4) A college has a deficit if the amount of revenue earned by the college in the most recent fiscal year for which information is available, as reported in the most recent audited financial statements of the college, is less than or equal to its expenditures for that fiscal year.

(5) A college has a surplus if the amount of revenue earned by the college in the most recent fiscal year for which information is available, as reported in the most recent audited financial statements of the college, is greater than its expenditures for that fiscal year.

Financing agreements

2. (1) A financial arrangement, financial commitment, guarantee, indemnity or similar transaction that is contained in a financing agreement entered into by a college and that meets the requirements set out in section 5 is exempt from the application of subsection 28 (1) of the Act if one of the following conditions is met:

1. The aggregate principal amount of money borrowed is less than or equal to $1 million.

2. The lender is the Ontario Financing Authority.

3. The money is borrowed for a term of one year or less and the aggregate principal amount of money borrowed is less than 25 per cent of the college’s revenues as reported in the most recent audited financial statements of the college. 

(2) Despite subsection (1), the following are not exempt from the application of subsection 28 (1) of the Act:

1. A mortgage renewal that would increase the contingent liabilities of Ontario.

2. The refinancing of an existing loan that would increase the contingent liabilities of Ontario. 

Operating agreements

3. A financial arrangement, financial commitment, guarantee, indemnity or similar transaction that is contained in an operating agreement entered into by a college and that meets the requirements set out in section 5 is exempt from the application of subsection 28 (1) of the Act in any of the following circumstances:

1. The college has a surplus in the previous fiscal year and an accumulated surplus in the previous fiscal year, and the annualized value of the operating agreement is less than or equal to 3 per cent of the college’s revenues as reported in the most recent audited financial statements of the college. 

2. The college has a deficit in the previous fiscal year or an accumulated deficit in the previous fiscal year, and the annualized value of the operating agreement is less than or equal to 2 per cent of the college’s revenues as reported in the most recent audited financial statements of the college. 

3. The college has a deficit in the previous fiscal year and an accumulated deficit in the previous fiscal year, and the annualized value of the operating agreement is less than or equal to 1 per cent of the college’s revenues as reported in the most recent audited financial statements of the college. 

Capital agreements

4. A financial arrangement, financial commitment, guarantee, indemnity or similar transaction that is contained in a capital agreement entered into by a college and that meets the requirements set out in section 5 is exempt from the application of subsection 28 (1) of the Act in any of the following circumstances:

1. The college has a surplus in the previous fiscal year and an accumulated surplus in the previous fiscal year, and the total value of the capital agreement is less than or equal to 5 per cent of the college’s revenues as reported in the most recent audited financial statements of the college.

2. The college has a deficit in the previous fiscal year or an accumulated deficit in the previous fiscal year, and the total value of the capital agreement is less than or equal to 4 per cent of the college’s revenues as reported in the most recent audited financial statements of the college.

3. The college has a deficit in the previous fiscal year and an accumulated deficit in the previous fiscal year, and the total value of the capital agreement is less than or equal to 3 per cent of the college’s revenues as reported in the most recent audited financial statements of the college.

General requirements

5. (1) Subject to subsections (2) and (3), the following requirements apply for the purposes of the exemptions set out in sections 2, 3 and 4:

1. The agreement has a term of 10 years or less.

2. The agreement is governed by the laws of Ontario.

3. The agreement complies with,

i. all applicable policies of the college, and

ii. all applicable laws and government directives.

4. The agreement relates to activities of the college that are permitted under its objects and that are undertaken within Canada.

5. The Government of Ontario is not responsible for paying any contingent liabilities that arise under the agreement.

(2) The requirement in paragraph 1 of subsection (1) that the agreement has a term of 10 years or less does not apply if the lender is the Ontario Financing Authority. 

(3) The requirements in paragraph 2 of subsection (1) that the agreement is governed by the laws of Ontario and in paragraph 4 of subsection (1) that the activities of the college are undertaken within Canada do not apply in the following circumstances:

1. The agreement relates to,

i. the purchase by the college of services related to recruitment, or

ii. the purchase or provision by the college of services related to curriculum design, program design or faculty exchange.

2. The agreement has a total value of less than $3 million.

3. The agreement limits the liabilities of the college under the agreement to a maximum of $3 million. 

6. Omitted (provides for coming into force of provisions of this Regulation).

 

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