Principal Issues: The issued and outstanding share capital of a corporation consists of common shares and preferred shares. The common shares are voting and the preferred shares are non voting, except for the "Right to Veto" described below. The preferred shares were issued in the context of a typical estate freeze. Whether the common shares of the capital stock of a corporation will be considered as having full voting rights under all circumstances for the purposes of subsection 186(2) and subparagraph 186(4)(b)(i) of the Act where the corporation may not make any amendments that affect the rights, conditions or privileges of the preferred shares without obtaining the consent of a certain number of the holders of the preferred shares (the "Right to Veto").
Position: Only excerpts of the articles of the corporation were submitted. When the part of the articles of incorporation describing the voting rights attached to the common shares are considered in isolation, one could argue that the said common shares do not have full voting rights under all circumstances. However, after examining all of the constating documents of the corporation, it is possible that it may be established that the common shares would effectively have full voting rights under all circumstances, despite the fact that the corporation may not make any amendments that affect the rights, conditions or privileges of the preferred shares without obtaining the consent of a certain number of the holders of the preferred shares. In itself, the fact that the holders of the preferred shares have this type of Right to Veto would not normally result in the common shares being considered not having full voting rights under all circumstances for the purposes of subsection 186(2) and subparagraph 186(4)(b)(i) of the Act. It should be noted that under certain corporate laws in Canada, this type of Right to Veto is granted by law to the shareholders. Subsection 186(2) or subparagraph 186(4)(b)(i) of the Act should not apply differently depending on whether the Right to Veto has been granted legislatively or under the terms of the articles of incorporation.
Reasons: Wording of the Act.