Victoria Foundation Act

[STATUTORY REVISION]

[SBC 2000] CHAPTER 33

Deposited with Clerk of the Legislative
Assembly on August 14, 2000

Contents
Section
  Definitions
  Victoria Foundation continued
  Objects of the foundation
  Foundation board
  Appointment of board members
  Powers of the foundation
  Foundation may establish common trust fund
  Use and distribution of income
  Use and distribution of capital
  9.1  Departure from terms and conditions of donating instrument
  9.2  Policies concerning retention, use and distribution of income and capital
  10  Repealed
  11  Donations to take effect in future
  12  General provisions relating to donations and property
  13  Appointment of custodian
  14  Duties of custodian
  15  Management of other charitable funds
  16  Court order directing transfer of trust property to the foundation
  17  Court order changing trust on which property is held
  18  Bylaws
  19  Borrowing powers
  20  Annual audit
  21  Provisions on winding up, dissolution or revocation
  22  Appointment of officers and employees
  23  Residents' advisory committees
  24  Service of documents on the foundation
  25  Continuation of bylaws
  26  Application of Business Corporations Act

Definitions

1  In this Act:

"board" means the board of the foundation under section 4;

"custodian" means a company that is

(a) incorporated, registered or deemed to be registered under the provisions of the Financial Institutions Act, and

(b) authorized to act as an executor and administrator in British Columbia;

"donation" means any gift made to the foundation, and includes bequests, devises, other testamentary dispositions, deeds of trust, funds, shares, stocks, bonds and any other property, wherever situated;

"foundation" means The Victoria Foundation continued under section 2;

"fund" means a common trust fund established under section 7;

"income" includes dividends, interest, rents and royalties, but does not include capital gains or losses;

"ordinary resolution" means a resolution passed by the board by a simple majority of the votes cast in person at a meeting of the board;

"property" includes real property and personal property;

"special resolution" means

(a) a resolution passed by a majority of at least 2/3 of the votes cast in person at a meeting of the board for which notice, including notice of the proposed special resolution, has been given

(i)  in accordance with the bylaws at least 10 days before the meeting, or

(ii)  if every member entitled to attend and vote at the meeting agrees, less than 10 days before the meeting, or

(b) a resolution approved in writing by every member of the board who would have been entitled to vote in person at a general meeting of the board;

"substituted property" means property that is

(a) substituted for property donated to the foundation, or

(b) acquired by one, or more than one, further substitution.

Victoria Foundation continued

2  (1) The foundation constituted under The Victoria Foundation Act, S.B.C. 1936, c. 70, is continued as a corporation under the name of "The Victoria Foundation".

(2) The foundation is comprised of the members of the board of the foundation.

Objects of the foundation

3  (1) The objects of the foundation are to use the donations entrusted to it for charitable purposes that will, in the sole discretion of the board, best promote the well being of humankind regardless of race, colour or creed, and to do this primarily to benefit inhabitants of the County of Victoria.

(1.1) If the donor indicates in the instrument by which property is donated to the foundation a desire that all or part of the income or capital be used for charitable purposes outside of the County of Victoria, the board may accept the donation and give effect to that desire consistent with the objects of the foundation.

(2) Without limiting subsection (1) or (1.1), the objects of the foundation include:

(a) providing care for needy men, women and children, and in particular for the sick, aged, destitute and helpless;

(b) promoting the betterment of underprivileged, disadvantaged or delinquent persons;

(c) promoting educational advancement and scientific or medical research for the increase of human knowledge and the alleviation of human suffering;

(d) promoting recreational activities and the conservation of human, heritage or natural resources;

(e) providing for other cultural, educational or charitable purposes as may be desirable.

Foundation board

4  (1) The board of the foundation is to consist of 11 residents of the County of Victoria, who are to be appointed under section 5.

(2) The term of office of the members of the board is that established by the bylaws of the foundation, but must be at least 2 years and not more than 5 years.

(3) The members of the board are not entitled to any remuneration for their services.

(4) A member of the board is not, in his or her individual capacity, liable for a debt or liability of the foundation.

Appointment of board members

5  (1) If there is a vacancy on the board, the following persons are responsible for appointing a person to fill the vacancy:

(a) a judge of the Supreme Court sitting in Victoria;

(b) the Mayor of the City of Victoria;

(c) the President of the Board of Directors of the United Way of Greater Victoria;

(d) the President of the Victoria Medical Society;

(e) the President of the Greater Victoria Chamber of Commerce.

(2) An appointment is to be made by a resolution of a majority of the persons referred to in subsection (1) at a meeting held in accordance with the bylaws of the foundation.

(3) The persons referred to in subsection (1) are themselves eligible for appointment as members of the board.

Powers of the foundation

6  The foundation has the following powers:

(a) to receive donations;

(b) to refuse to accept donations in the sole discretion of the board;

(c) to accept and carry into effect trusts consistent with the objects of the foundation;

(d) to own, hold, control, administer and manage property of any kind or description, wherever situated;

(e) to convert any property received or held by the foundation into any other form, if this is not in contravention of an express term of the instrument under which a donation is received and, for that purpose, to sell, assign, transfer, lease, exchange or otherwise dispose of the property;

(f) to retain as an authorized investment all or part of any property donated to the foundation for a period of time determined by the board in its absolute discretion, whether or not the property is in the form of an investment authorized by law for the investment of trust funds;

(g) to lease any lands held by the foundation for purposes consistent with the objects of the foundation;

(h) subject to a contrary intent expressed in a gift, devise, bequest or trust or in a direction by a court, to invest the funds and other property held by the foundation in investments that a prudent person would make and, for these purposes, section 15 of the Trustee Act does not apply;

(i) to abandon any property held by the foundation that the board considers not advisable to retain;

(j) to do acts and make agreements as may be necessary to carry out the objects of the foundation;

(k) to administer and distribute property, funds, capital or income in its possession in accordance with the objects of the foundation and this Act;

(l) to pay the expenses of administering the foundation and property owned, held, controlled, administered or managed by the foundation and to charge those expenses, on any basis that the board in its discretion considers appropriate, against the income from or the capital of such property.

Foundation may establish common trust fund

7  (1) Despite anything in this Act, the foundation may establish a common trust fund in which property received by the foundation under donations is combined for the purpose of facilitating investment.

(2) The board may, by ordinary resolution, establish policies concerning the following:

(a) the operation and investment of the fund;

(b) the method and valuation of investments in the fund and the date on which the valuation may be made.

(c) [Repealed 2009-27-4.]

(d) the property that may be included in the fund.

(3) A direction in writing by a donor that property included in a donation must not be included in the fund is binding on the board.

Use and distribution of income

8  (1) Subject to the express provisions of the instrument by which property is donated to the foundation and to sections 9.1 and 17, the board may use or distribute all or part of the income from donated or substituted property in order to further the objects of the foundation, if

(a) the use or distribution is required to comply with a policy established by the board under section 9.2, and

(b) the board, by ordinary resolution, determines the amount that may be used or distributed from time to time under this section.

(2) This section applies in respect of income from property of the foundation whether the income is received by, or the property is donated to, or received or acquired by, the foundation before or after this subsection comes into force.

Use and distribution of capital

9  (1) Subject to the express provisions of the instrument by which property is donated to the foundation and to sections 9.1 and 17, the board may use or distribute part of the capital of donated or substituted property in order to further the objects of the foundation, if

(a) the use or distribution is required to comply with a policy established by the board under section 9.2, and

(b) the board, by ordinary resolution, determines the amount that may be used or distributed from time to time under this section.

(2) The capital of property of the foundation at the time of a use or distribution of capital under this section is the dollar value of the property

(a) at the time the property was donated, or

(b) if the property is substituted property, at the time the property was substituted,

less

(c) any expenses charged under section 6 (l) in respect of the property before the time of that use or distribution of capital, and

(d) any amounts of capital used or distributed under this Act in respect of the property before the time referred to in paragraph (c).

(3) This section applies in respect of capital of property of the foundation whether the property is donated to, or received or acquired by, the foundation before or after this subsection comes into force.

Departure from terms and conditions of donating instrument

9.1  If, after the lifetime of a donor or the winding up of a corporate donor, circumstances make it, in the board’s opinion, no longer possible or practical to comply with a term or condition of the instrument by which property was donated to the foundation, the board may depart from that term or condition, but

(a) only to the extent that the board considers necessary to further the objects of the foundation, and

(b) if the donation was received by the foundation other than by way of bequest or inheritance, only after a period of not less than 10 years has elapsed from the date on which the donation was received.

Policies concerning retention, use and distribution of income and capital

9.2  For the purposes of sections 8 and 9, the board must, by ordinary resolution, establish policies concerning the retention, use and distribution of income and capital that take into account the following:

(a) the foundation’s need to maintain a reasonable balance between the inflation adjusted capital value of property donated to the foundation and the amounts to be used or distributed;

(b) the estimated return on investments without regard to whether the return is characterized as income or capital;

(c) existing and anticipated requirements;

(d) the achievement of stability in the amounts to be used or distributed;

(e) the disbursement requirements of any applicable taxation legislation;

(f) any other factors the board considers relevant.

Repealed

10  [Repealed 2009-27-6.]

Donations to take effect in future

11  If a donation is made to the foundation in trust of any property to take effect in the future, the board may accept and exercise

(a) any powers of appointment, settlement or distribution with respect to the income or capital in whole or in part derivable from the property in the interim, and

(b) any power to nominate executors and trustees in the manner provided in the instrument creating the trust.

General provisions relating to donations and property

12  (1) Any form of words is sufficient to constitute a donation for the purpose of this Act so long as the donor indicates an intention to contribute presently or prospectively to a fund or foundation of the general character indicated in this Act.

(2) The rule against perpetuities and the rule against accumulations do not apply to donations made to the foundation or property held by the foundation.

Appointment of custodian

13  (1) The board must appoint a custodian to have possession and custody of a donation or a part of a donation.

(2) The board may make any agreement that the board in its sole discretion considers appropriate with respect to the management and administration of a donation or part of a donation.

(3) An appointment under subsection (1) or an agreement under subsection (2) must be as consistent as is practicable with the written directions or desires of the donor of the donation.

(4) The board may at any time revoke an appointment under subsection (1) and appoint instead a new custodian.

(5) The title to any property donated to the foundation must be in the foundation unless the board determines otherwise.

Duties of custodian

14  Every custodian acting for the foundation has the following duties:

(a) to have possession and custody of all property entrusted to it by the foundation;

(b) to follow all directions of the board with respect to any property entrusted to it by the foundation;

(c) to distribute or pay from the funds in its possession the sums directed by the board in the manner directed by the board;

(d) to remit sufficient property or funds to the board to fulfill the objects of the foundation under this Act;

(e) to give full information and permit the necessary inspections required for the audit under section 20.

Management of other charitable funds

15  (1) A charitable organization may entrust funds to the foundation if the organization is

(a) established under the law of British Columbia, or

(b) authorized to operate under the law of British Columbia and registered under the Income Tax Act (Canada).

(2) The foundation may, on terms and conditions agreeable to both the foundation and the charitable organization, manage and invest the funds.

Court order directing transfer of trust property to the foundation

16  (1) If a person or association, including a board of management of a public body or institution consisting of appointed members or directors,

(a) holds property in trust

(i)  for a charitable purpose,

(ii)  for the benefit of a charitable institution, or

(iii)  for any purpose similar to the objects of the foundation, and

(b) wishes for any reason to be discharged from the administration of that trust,

the person or association may, on notice to the foundation, apply to the Supreme Court for an order under this section.

(2) On an application under this section, the Supreme Court may make an order that the property subject to that trust may be transferred, assigned, set over and conveyed to the foundation subject to the terms of the trust and any other terms and conditions ordered by the court.

(3) If an order under this section requires the foundation to accept the property, any trustee complying with the terms of the order is fully relieved and discharged of all further responsibility in respect of the property handed over under the order.

Court order changing trust on which property is held

17  (1) This section applies if

(a) in relation to a specific charitable trust held by the foundation,

(i)  the object of the trust has ceased to exist,

(ii)  the trust has become substantially incapable of performance, or

(iii)  the trust cannot be administered for any reason, and

(b) the foundation cannot vary the terms of the trust to provide for alternative objects by agreement with the donor or his or her personal representatives within a reasonable time as determined by resolution of the board.

(2) By resolution of the board, the foundation, as trustee, may afterwards use the property for the same charitable purposes and in the same manner as other donations that may be made to the foundation under this Act.

(3) Subject to an order under subsection (5), a decision of the board under subsection (2) is final and binding on all persons affected.

(4) A person affected by a decision under this section, on proper notice to the foundation and within 60 days after the decision was made, may apply to the Supreme Court for an order to revoke or alter the resolution of the board.

(5) On an application under subsection (4), the court may make any order it considers reasonable in the circumstances.

Bylaws

18  The board may, by special resolution, make bylaws consistent with this Act to provide for the management of the property and affairs of the foundation.

Borrowing powers

19  (1) The power of the foundation to borrow is restricted to

(a) borrowing for the purpose of obtaining money to administer the foundation and to pay the expenses incurred in carrying out the objects of the foundation, and

(b) borrowing for the purpose of obtaining money that, in the discretion of the members of the board as determined by ordinary resolutions, is required to protect or preserve any assets held by the foundation.

(2) The cost of borrowing and the security given for money borrowed to protect or preserve any assets separately held on the express written terms of any specific charitable donation, is to be charged against or limited to the assets separately held on those express terms.

(3) Subject to subsection (1), the board may borrow money in the manner and amount, on the security including the issue of debentures, from the sources and on the terms and conditions as may be determined by ordinary resolution of the board.

Annual audit

20  (1) The board must

(a) have an audit of the financial transactions of the foundation made at least once in every fiscal year by an independent auditor, and

(b) have highlights of the annual audited financial statements of the foundation published in a Victoria newspaper of general circulation.

(2) The published highlights must

(a) refer to the availability of complete audited financial statements from the foundation, and

(b) indicate whether the auditor's opinion on the financial statements was qualified or unqualified.

Provisions on winding up, dissolution or revocation

21  (1) Subject to subsection (2), if

(a) the foundation is wound up or dissolved, or

(b) the registration of the foundation is revoked according to the terms of the Income Tax Act (Canada),

any assets of the foundation remaining after the payment of its debts and expenses must be transferred to one or more organizations concerned with promotion of the well being of humankind or promoting the same objects as the foundation, as may be determined by the board at the time of winding up, dissolution or revocation.

(2) Assets may only be transferred under subsection (1) to an organization that is a charitable organization, private foundation or public foundation recognized by Canada Revenue Agency as being qualified as such under the provisions of the Income Tax Act (Canada).

Appointment of officers and employees

22  (1) The board may appoint the officers it considers necessary.

(2) The board may appoint the employees or agents it considers necessary, and may establish their remuneration and other terms and conditions of employment or engagement.

Residents' advisory committees

23  The board may establish voluntary advisory committees composed of residents of British Columbia to assist the board in the conduct of the affairs of the foundation.

Service of documents on the foundation

24  A document may be served on the foundation by personally serving any member of the board or any officer of the foundation.

Continuation of bylaws

25  Subject to this Act, all bylaws enacted by the board before the enactment of this Act remain in effect after the enactment of this Act.

Application of Business Corporations Act

26  Despite section 4 (1) of the Business Corporations Act, that Act does not apply to the foundation.