Building Ontario Fund Act, 2024, S.O. 2024, c. 12, Sched. 1

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Building Ontario Fund Act, 2024

S.o. 2024, chapter 12
schedule 1

Consolidation Period: From May 16, 2024 to the e-Laws currency date.

No amendments.

CONTENTS

 

Definitions

1 In this Act,

“Corporation” means the Building Ontario Fund; (“Société”)

“Minister” means the Minister of Finance or the minister of the Crown to whom the power and duties under this Act are assigned or transferred under the Executive Council Act; (“ministre”)

“qualified institutional investor” means a financial institution, pension fund, investment fund or any other entity prescribed by the regulations. (“investisseur institutionnel admissible”)

Corporation continued

2 (1) The corporation known in English as Ontario Infrastructure Bank and in French as Banque de l’infrastructure de l’Ontario is continued as a corporation without share capital under the name Building Ontario Fund in English and Fonds ontarien pour la construction in French.

Members of Corporation

(2) The Corporation is composed of the members of its board of directors.

Same

(3) A person ceases to be a member of the Corporation when the person ceases to be a director.

Transition, existing members of the board

(4) A person who was a member of the board of directors immediately before the day subsection 2 (1) of Schedule 1 to the Building a Better Ontario Act (Budget Measures), 2024 came into force may continue to hold that position for the remainder of the person’s term.

Same

(5) Subject to subsection 6 (6), a person who is a member of the board of directors under subsection (4) of this section is entitled to the same remuneration to which that person was entitled as a member of the board immediately before the day referred to in that subsection.

Objects

3 The Corporation’s objects are,

(a)  to invest and seek to attract investment from qualified institutional investors, public sector entities, governments and Indigenous communities, with priority given to Canadian investors, in Ontario infrastructure projects that will generate revenue and that will be in the public interest by,

(i)  investing in infrastructure and appropriately allocating risks amongst the Corporation and other investors,

(ii)  structuring proposals and negotiating agreements with investors in infrastructure projects,

(iii)  receiving and assessing unsolicited ideas and proposals for infrastructure projects that come from qualified institutional investors, public sector entities, governments or Indigenous communities, and

(iv)  providing advisory services with respect to financing infrastructure projects, including loan structures and areas of investment opportunity;

(b)  to conduct such further activities, consistent with its objects, as are described in any policies or directives issued by the Minister or as set out in any agreement with the Minister; and

(c)  to receive, hold, sell, invest and otherwise deal with its assets in carrying out its objects.

Crown agent

4 (1) Subject to subsections (2) to (5), the Corporation is an agent of the Crown in right of Ontario for all purposes.

Exception — declaration

(2) The Minister may declare in writing that the Corporation is not acting as an agent of the Crown for the purpose of any of its contracts, securities or instruments.

Effect of declaration

(3) If the Minister makes a declaration in accordance with subsection (2), the Corporation shall be deemed not to be a Crown agent for the purposes of the contract, security or instrument and the Crown is not liable for any liabilities or obligations incurred by the Corporation under the contract, security or instrument.

Exception — Minister’s regulation

(4) The Minister may, by regulation, provide that the Corporation is not acting as an agent of the Crown for the purpose of any class of contracts, securities or instruments.

Effect of regulation

(5) If the Minister makes a regulation under subsection (3), the Corporation shall be deemed not to be a Crown agent for the purposes of that class of contract, security or instrument and the Crown is not liable for any liabilities or obligations incurred by the Corporation under that class of contract, security or instrument.

Unpaid judgments against the Corporation

(6) The Minister shall pay from the Consolidated Revenue Fund the amount of any judgment against the Corporation that remains unpaid after the Corporation has made reasonable efforts, including liquidating assets, to pay the amount of the judgment.

Exception

(7) Subsection (6) does not apply to any judgment in respect of a contract, security or instrument in respect of which a declaration is made under subsection (2) or to which a regulation made under subsection (4) applies.

Limit

(8) A declaration made under subsection (2) or a regulation made under subsection (4) does not apply to any contract, security or instrument that is entered into, issued or otherwise in force prior to the making of the declaration or regulation.

Board of directors

5 (1) The board of directors of the Corporation shall be composed of at least three and not more than 11 members.

Management and supervision by board

(2) The board of directors shall manage or supervise the management of the Corporation’s affairs.

Composition of board, etc.

6 (1) The board of directors of the Corporation shall be appointed at pleasure by the Lieutenant Governor in Council on the recommendation of the Minister.

Chair and vice-chair

(2) On the recommendation of the Minister, the Lieutenant Governor in Council shall designate a chair from among the members of the board of directors and may designate a vice-chair from among the members of the board of directors.

Same

(3) If the chair is absent or unable to act, or if the office of the chair is vacant, and a vice-chair has been designated, the vice-chair shall act as chair.

Same

(4) If the chair is absent or unable to act and the vice-chair is absent or unable to act or no vice-chair has been designated, the members present shall appoint an acting chair from among themselves.

Quorum

(5) A majority of the members constitutes a quorum of the board of directors.

Remuneration and reimbursement

(6) The members of the board of directors shall receive the remuneration and reimbursement for reasonable expenses that the Lieutenant Governor in Council determines.

By-laws

7 (1) Subject to the Minister’s approval, the board of directors may pass by-laws and resolutions regulating its proceedings and generally for the conduct and management of the affairs of the Corporation.

Same

(2) Without limiting the generality of subsection (1), the board of directors may pass by-laws and resolutions to,

(a)  appoint officers and assign to them such powers and duties as the board of directors considers appropriate;

(b)  establish committees of the board of directors and delegate powers and duties to such committees;

(c)  govern the remuneration and benefits of employees of the Corporation; and

(d)  effect the orderly transaction of the business of the Corporation.

Continuation of by-laws

(3) Despite the revocation of Ontario Regulation 333/23 (Ontario Infrastructure Bank) made under the Development Corporations Act, any by-law made by the Corporation that was in effect immediately before the revocation is continued.

Chief Executive Officer

8 (1) The board of directors shall appoint a Chief Executive Officer.

Same

(2) The Chief Executive Officer is responsible for the operation of the Corporation, subject to the supervision and direction of the board of directors.

Remuneration and benefits

(3) The Corporation shall pay such remuneration and benefits to the Chief Executive Officer as is determined by the board of directors, subject to the Minister’s approval.

Employees

9 (1) The Corporation may employ or otherwise engage persons as it considers necessary for the proper conduct of the business of the Corporation.

Agreements for provision of services

(2) The Corporation may enter into agreements with any minister of the Crown or chair of a Crown agency for the provision of services to the Corporation by employees of the Crown or employees of the Crown agency, as the case may be.

Pension benefits

(3) The Corporation may provide its eligible employees with pension benefits under the Public Service Pension Plan if the Corporation is designated as an employer under the Public Service Pension Act.

Remuneration and benefits

(4) The Corporation shall pay such remuneration and benefits to employees of the Corporation as is determined by the board of directors, subject to the Minister’s approval.

Powers

10 Except as limited by this Act, the Corporation has the capacity, rights, powers and privileges of a natural person for carrying out its objects.

Investments, etc.

11 Without limiting the generality of the Corporation’s powers under section 10, the Corporation may,

(a)  make investments to carry out its objects, including by way of equity investment, loan, acquiring a derivative or giving a guarantee; and

(b)  acquire and hold, realize on or otherwise dispose of security or a security interest of any kind, including any interest or rights in real property or personal property as security for the due performance of any arrangement or agreement with the Corporation, and retain and use the proceeds of disposition.

Limit on powers, approval of Minister

12 (1) The Corporation shall not, except with the approval of the Minister, acquire, hold or dispose of any interest in real property.

Same

(2) Subsection (1) does not apply with respect to investments made by the Corporation in carrying out its objects under section 3.

Limit on location of infrastructure projects

13 The Corporation shall not, except with the approval of the Minister, make an investment or enter into any arrangement for the financing of a project that is not entirely located within Ontario.

Limit re public interest

14 The Corporation shall not enter into any arrangement for the financing of a project with an investor whose interests do not align with the Ontario public interest.

Limit on powers re borrowing and managing financial risks

15 (1) The Corporation shall not borrow or manage financial risks unless,

(a)  a by-law of the Corporation authorizes the activity and the Minister has approved the by-law; and

(b)  subject to subsection (2), the Ontario Financing Authority co-ordinates and arranges the activity.

Direction of Minister of Finance

(2) The Minister may in writing direct a person other than the Ontario Financing Authority, including the Corporation, to perform the functions referred to in clause (1) (b).

Same

(3) A direction of the Minister under subsection (2) may be general or specific and may include terms and conditions that the Minister considers advisable.

Non-application of Legislation Act, 2006, Part III

(4) Part III (Regulations) of the Legislation Act, 2006 does not apply to a direction issued under subsection (2).

Loan guarantees — limitation

16 (1) The Corporation may provide loan guarantees only in accordance with this section.

Same

(2) The Corporation may recommend that the Minister approve a loan guarantee with respect to an infrastructure project and if the Minister concurs with the recommendation, the Minister may approve the loan guarantee.

Same

(3) Despite subsection (2), the Corporation may provide a loan guarantee with respect to an infrastructure project without the Minister’s approval if the value of the loan guarantee provided by the Corporation is less than $200 million.

Appropriation

17 (1) The Lieutenant Governor in Council may authorize the Minister to make advances to the Corporation in such amounts as may be specified by the Lieutenant Governor in Council and at such times and on such terms and conditions as the Minister considers expedient.

Same

(2) The money required for the purposes of subsection (1) shall be a charge on and payable out of the Consolidated Revenue Fund.

Loans to the Corporation

18 At the request of the Corporation, the Minister may lend money to the Corporation out of the Consolidated Revenue Fund on any terms and conditions that the Minister may fix.

Revenue

19 (1) The revenues of the Corporation shall be deposited into accounts permitted by the Corporation’s by-laws and shall be applied solely for carrying out the Corporation’s objects.

Status of revenue and assets

(2) Despite Part I of the Financial Administration Act, all revenues and assets of the Corporation do not form part of the Consolidated Revenue Fund.

Application of certain Acts

20 (1) Section 132 (disclosure: conflict of interest), subsection 134 (1) (standards of care, etc., of directors, etc.) and section 136 (indemnification) of the Business Corporations Act apply, with necessary modifications, to the Corporation and members of its board of directors.

Same

(2) The Not-for-Profit Corporations Act, 2010 and the Corporations Information Act do not apply to the Corporation.

Crown liability

No personal liability

21 (1) No cause of action arises against any current or former member of the Executive Council or officer, employee or agent of the Crown for any act done in good faith in the exercise or performance, or intended exercise or performance, of the person’s powers, duties or functions under this Act or for any alleged neglect, default or other omission in the exercise or performance in good faith of those powers, duties or functions.

Crown remains vicariously liable

(2) Despite subsection 8 (3) of the Crown Liability and Proceedings Act, 2019, subsection (1) of this section does not relieve the Crown of liability to which it would otherwise be subject as a result of the acts or omissions of a person specified in subsection (1).

No liability for acts or omissions of others

(3) No cause of action arises against the Crown or any person specified in subsection (1) for an act or omission of a person other than the Crown or a person specified in that subsection, if the act or omission is related, directly or indirectly, to the exercise or performance, or intended exercise or performance, of a power, duty or function under this Act.

Employment, etc. with the Corporation

(4) If a person who is an employee or agent of the Crown is employed in or assigned to or otherwise performs duties directly for the Corporation, the person is deemed to be an employee of the legal entity and not an employee or agent of the Crown specified in subsection (1) in relation to the person’s acts or omissions arising from the employment, assignment or performance for the purposes of this section and sections 22 and 23 as well as any claim for vicarious liability.

Proceedings by Crown not prevented

(5) This section does not apply with respect to proceedings brought by the Crown.

Corporation liability

No personal liability

22 (1) No cause of action arises against any current or former director, officer, employee or agent of the Corporation for any act done in good faith in the exercise or performance, or intended exercise or performance, of the person’s powers, duties or functions under this Act or for any alleged neglect, default or other omission in the exercise or performance in good faith of those powers, duties or functions.

Corporation vicariously liable

(2) Subsection (1) does not relieve the Corporation of liability to which it would otherwise be subject as a result of the acts or omissions of a person specified in subsection (1).

Proceedings by Crown not prevented

(3) This section does not apply with respect to proceedings brought by the Crown.

Proceedings barred

23 (1) No proceeding shall be commenced,

(a)  against any person specified in subsection 21 (1) in respect of a matter referred to in that subsection;

(b)  against the Crown or any person specified in subsection 21 (1) in respect of a matter referred to in subsection 21 (3); or

(c)  against any person specified in subsection 22 (1) in respect of a matter referred to in that subsection.

Same

(2) Subsection (1) does not apply with respect to an application for judicial review, but does apply with respect to any other court, administrative or arbitral proceeding claiming any remedy or relief, including specific performance, an injunction, declaratory relief, a remedy in contract, restitution, unjust enrichment or tort, a remedy for breach of trust or fiduciary obligation or any equitable remedy, enforcement of a judgment, order or award made outside Ontario or any form of compensation or damages including loss of revenue or profit.

Proceedings by Crown not prevented

(3) This section does not apply with respect to proceedings brought by the Crown.

Financial records, etc.

24 (1) The Corporation shall maintain financial records for the Corporation and shall establish financial, management and information systems that will enable the Corporation to prepare financial statements in accordance with generally accepted accounting principles.

Inspection

(2) Upon the request of the Minister, the Corporation shall promptly make its financial records available for inspection.

Fiscal year

25 The Corporation’s fiscal year begins on April 1 in each year and ends on March 31 in the following year.

Reports

26 (1) The Corporation shall, on a frequency identified by the Minister, report on its progress in achieving performance targets and standards as set by the Minister.

Annual report

(2) The Corporation shall prepare an annual report, provide it to the Minister no later than 120 days after the end of the Corporation’s fiscal year and make it available to the public.

Directives re annual report

(3) The Corporation shall comply with such directives as may be issued by the Management Board of Cabinet with respect to,

(a)  the form and content of the annual report; and

(b)  when and how to make it available to the public.

Additional content

(4) The Corporation shall include such additional content in the annual report as the Minister may require.

Tabling of annual report

27 The Minister shall table the Corporation’s annual report in the Assembly and shall comply with such directives as may be issued by the Management Board of Cabinet with respect to when to table it.

Business plans and reports

28 (1) At least six months before the beginning of each fiscal year or by a date specified by the Minister, the Corporation shall prepare and provide to the Minister for the Minister’s approval a business plan described in subsection (2) and such reports as the Minister may require.

Same

(2) The business plan must be based on a five-year cycle and contain,

(a)  the Corporation’s proposed operating budget for the fiscal year and the next two fiscal years;

(b)  the Corporation’s projected revenues and their sources;

(c)  the Corporation’s performance targets for the next fiscal year; and

(d)  any other information required by the Minister.

Other reports

29 The Minister may require the Corporation to provide other reports on such topics as the Minister specifies.

Policies and directives by Minister

30 (1) The Minister may issue policies and directives in writing to the board of directors of the Corporation on matters relating to the exercise of its powers or duties.

Implementation of policies and directives

(2) The board shall, through the Corporation, ensure that the policies and directives issued to the Corporation are implemented promptly and efficiently.

Audit

31 (1) The Corporation’s board of directors shall appoint one or more licensed public accountants to audit the accounts and transactions of the Corporation for the previous fiscal year.

Auditor General

(2) The Auditor General may also audit the accounts and transactions of the Corporation for any fiscal year.

Minister-appointed auditor

(3) The Minister may at any time appoint a licensed public accountant, other than the person appointed under subsection (1), to audit the accounts and transactions of the Corporation for any period of time specified by the Minister.

Winding up

32 If the Lieutenant Governor in Council considers it to be in the public interest to wind up the affairs of the Corporation, the Minister may do all things necessary to accomplish that, including dealing with the assets of the Corporation by,

(a)  liquidating or selling the assets and paying the proceeds into the Consolidated Revenue Fund; or

(b)  transferring the assets to the Crown or another agency of the Crown.

Regulations

33 (1) The Lieutenant Governor in Council may make regulations respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act and without limiting the generality of the foregoing, may make regulations,

(a)  prescribing anything referred to in this Act as being prescribed by the regulations;

(b)  governing the manner in which the Corporation carries out its objects.

Same, Minister

(2) The Minister may make regulations with respect to any matter that, in this Act, is described as being done by a regulation made by the Minister.

34 Omitted (amends, repeals or revokes other legislation).

35 Omitted (provides for coming into force of provisions of this Act).

36 Omitted (enacts short title of this Act).

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