On April 26, 2020, further to the public health emergency declared on March 13, 2020 (the "state of emergency") and in order to protect the health of the population in response to the COVID-19 pandemic, Quebec's Minister of Health and Social Services adopted order number 2020-029 under the Public Health Act (the "Order").
As confirmed by the Minister of Justice and Attorney General of Quebec in a press release issued on April 27, 2020, the Order temporarily allows any in-person meeting, session or assembly (a "meeting") to be held by any means that enables all participants to communicate directly with one another.
Meetings held by corporations governed by the Quebec Business Corporations Act (the "QBCA"), non-profit legal persons constituted under Part III of the Companies Act (the "Companies Act") and cooperatives constituted under the Cooperatives Act or any other specific incorporating law (collectively, the "Laws Governing Cooperatives") are considered a meeting pursuant to the Order.
As such, the measures set out in the Order that temporarily allow corporations, non-profit legal persons or cooperatives to hold remote meetings, provided that all participants can communicate directly with one another, have precedence over the provisions of the QBCA, Companies Act and the Laws Governing Cooperatives, where the by-laws, incorporating statute or constituting instrument, as the case may be, prohibit the holding of such a meeting.
Moreover, under the Order, where a ballot vote is required at a meeting, it must be held by any means of communication agreed upon by all persons entitled to vote at the meeting or, failing that, by any means which enables the votes to be cast in a way that allows them to be verified afterwards and that protects the secrecy of the vote.
The measures under the Order will be in force for a limited period of time, namely until the state of emergency ends, after which the provisions of the QBCA, Companies Act and the Laws Governing Cooperatives will be enforceable. As a result, this exemption will only apply to meetings that are held while the Order is in force.
Note that this Order does not apply to corporations, cooperatives, non-profit legal persons or other entities governed by laws other than those adopted by the Quebec Parliament, such as corporations governed by the Canada Business Corporations Act as well as corporate laws of other Canadian or foreign jurisdictions. For more information in this regard, refer to the March 26, 2020 notice from Corporations Canada concerning federally incorporated corporations, as well as the articles published by Fasken regarding corporations governed by the laws of Ontario and British Columbia.
For a more in-depth legal analysis of virtual annual shareholder meetings, we invite you to consult the following articles:
- How to Self-Quarantine your Corporation's AGM in the Context of COVID-19
- Diving Deeper: AGM Developments in the Context of COVID-19
- Bringing Your Annual Meetings into the Digital Age – Two Years Later
- Virtual AGM proxy season key takeaways to date
Disclaimer: This bulletin is for general information purposes and is subject to the particular facts of each case; certain requirements may have been simplified and the law may have changed since the date of this bulletin.
The authors would like to thank Nathalie-Anne Béliveau and Jean Michel Lapierre for their contribution to this bulletin.