t-11.002 - Act respecting the transfer of securities and the establishment of security entitlements

À jour au 1^er janvier 2009

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chapter T-11.002

Act respecting the transfer of securities and the establishment of security entitlements

CHAPTER I PURPOSE AND SCOPE

1. The purpose of this Act is to establish a legal framework for certain private law aspects of the transfer of securities and the establishment of security entitlements to financial assets, as part of an effort by the Canadian provinces and territories to harmonize their laws on the matter.

2008, c. 20, s. 1.

2. The provisions of this Act pertaining to the rights and obligations arising out of a transfer of securities or the establishment of security entitlements to financial assets are suppletive provisions.

However, the obligations of good faith, prudence, diligence and reasonableness applicable in carrying out those provisions may not be disclaimed by the parties, but the parties may establish standards of conduct whose observance will be considered to imply the performance of those obligations, so long as such standards are not manifestly unreasonable.

2008, c. 20, s. 2.

3. Unless the context indicates otherwise, a person who is required by a statute, law, rule, agreement or judgment to put a security or financial asset in the possession of another person satisfies that requirement by delivering the security to that other person or causing that other person to acquire a security entitlement to the financial asset as set out in this Act.

For the purposes of this Act, groups of persons or properties not endowed with juridical personality, such as general, limited or undeclared partnerships, associations that are not legal persons, trusts and funds constituted as patrimonies by appropriation, are considered to be persons.

2008, c. 20, s. 3.

4. The provisions of this Act are applicable to a clearing agency only to the extent that they do not conflict with the rules adopted by the clearing agency governing legal relationships between the clearing agency and its participants or between participants in the clearing agency. Those rules are effective even if they affect the rights and obligations of a person who does not consent to them.

In this Act, “clearing agency ” means any person that carries on activities of a clearing agency or clearing house within the meaning of the Securities Act (chapter V-1.1) or the securities regulatory law of another province or a territory in Canada, that is authorized to carry on such activities by the Autorité des marchés financiers and that is a securities and derivatives clearing house for the purposes of section 13.1 of the Payment Clearing and Settlement Act (Statutes of Canada, 1996, chapter 6, Appendix) or operates a clearing and settlement system designated under Part I of that Act.

Except for the purposes of the first paragraph, “clearing agency” also means a person that, without being authorized by the Autorité des marchés financiers to carry on activities of a clearing agency or clearing house, is nonetheless recognized as such by the equivalent authority of another province or a territory in Canada and meets the other conditions set out in the second paragraph.

2008, c. 20, s. 4.

5. This Act is applicable to the State, bodies of the State and any other legal person established in the public interest.

2008, c. 20, s. 5.

CHAPTER II GENERAL PROVISIONS

DIVISION I TRANSFER OF SECURITY, ESTABLISHMENT OF SECURITY ENTITLEMENT AND RELATED CONCEPTS

6. For the purposes of this Act, a security is transferred when a person acquires rights in the security and takes delivery of the security from the issuer or another person and a security entitlement to a financial asset is established when a person acquires rights in a financial asset held by a securities intermediary. A reference in this Act to a purchaser is a reference to a person acquiring rights in a security or financial asset.

The acquisition of rights in a security or financial asset (“purchase”) may result from any act constituting or conveying rights in the security or financial asset, whether by onerous title (“for value”) or by gratuitous title (“not for value”), including an issue, sale, exchange, gift or hypothec, provided only that the act is consensual.

2008, c. 20, s. 6.

7. For the purposes of this Act, “issuer” means

(1)  a person who issues a security represented by a security certificate or who, other than as the person entrusted with authenticating the origin, genuineness and integrity of documents, places or authorizes the placing of the person’s name on a security certificate to evidence a share or similar participation or the person’s duty to perform an obligation represented by the security certificate;

(2)  a person who issues a share or similar participation or undertakes to perform an obligation that is an uncertificated security; or

(3)  a person who stands surety for or is otherwise bound by the obligations of a person described as an issuer in subparagraph 1 or 2.

“Issuer” also means, with respect to a registration of a transfer of a security, a person on whose behalf transfer books are maintained.

2008, c. 20, s. 7.

8. Clearing agencies are securities intermediaries within the meaning of this Act, as are dealers, banks, financial services cooperatives, trust companies, savings companies and other persons that in the ordinary course of their business maintain securities accounts for others and are acting in that capacity.

A securities account is an account to which a financial asset is or may be credited in accordance with an agreement under which the securities intermediary maintaining the account undertakes to consider the account holder as being entitled to exercise the rights that constitute the financial asset.

2008, c. 20, s. 8.

9. For the purposes of this Act,

(1)  “security certificate” means a paper certificate only;

(2)  “participation” includes any title conferring rights in property or in an enterprise.

2008, c. 20, s. 9.

DIVISION II DISTINCTION BETWEEN SECURITY AND FINANCIAL ASSET

§ 1 . — Security

10. A security within the meaning of this Act is a share or similar participation in an issuer or an obligation of an issuer

(1)  that is represented by a security certificate in bearer form or registered form, or the transfer of which may be registered on books maintained for that purpose by or on behalf of the issuer;

(2)  that is one of a class or series, or by its terms is divisible into a class or series, of shares, participations or obligations; and

(3)  that is, or is of a type, dealt in or traded on securities exchanges or financial markets, or that is a medium for investment in the area in which it is issued or dealt in or traded and by its terms expressly provides that it is a security for the purposes of this Act.

A security certificate is in bearer form if it expressly states that the security is payable to the certificate bearer. A security certificate is in registered form if it specifies a person entitled to the security and if a transfer of the security may be registered on books maintained for that purpose by or on behalf of the issuer, or the security certificate states that it may be so registered.

2008, c. 20, s. 10.

11. Despite the conditions set out in section 10, a share or similar participation issued by a joint-stock company is a security, as is a participation in a trust. A share, unit or similar participation, other than an insurance policy or annuity contract issued by an insurance company, that is issued by a mutual fund within the meaning of the Securities Act (chapter V-1.1) is also a security.

2008, c. 20, s. 11.

§ 2 . — Financial asset

12. A financial asset within the meaning of this Act is

(1)  a security;

(2)  a share or other participation in a person or an obligation of a person that, without being a security, is, or is of a type, dealt in or traded on financial markets or is a medium for investment in the area in which it is issued or dealt in or traded;

(3)  any property that is held by a securities intermediary for another person in a securities account if the securities intermediary has expressly agreed with the other person that the property is to be treated as a financial asset under this Act; or

(4)  a credit balance in a securities account, unless the securities intermediary has expressly agreed with the person for whom the account is maintained that the credit balance is not to be treated as a financial asset under this Act.

2008, c. 20, s. 12.

13. A security entitlement is established when a security or other financial asset is, or is to be, credited to a securities account maintained by a securities intermediary.

2008, c. 20, s. 13.

§ 3 . — Classification of certain property

14. A unit of or similar participation in a partnership or a limited liability company is not a security unless

(1)  it is, or is of a type, dealt in or traded on securities exchanges or securities markets;

(2)  its terms expressly provide that it is a security for the purposes of this Act; or

(3)  the partnership or company is a mutual fund.

Whether considered a security or not, such a unit or participation is a financial asset if it is held in a securities account.

In this Act, “limited liability company” means a group not endowed with juridical personality, other than a partnership, that is formed under the laws of a legislative authority other than Québec and whose legal status grants to each of its members limited liability with respect to the liabilities of the group.

2008, c. 20, s. 14.

15. Bills of exchange and promissory notes to which the Bills of Exchange Act (Revised Statutes of Canada, 1985, chapter B-4) applies and depository bills and depository notes to which the Depository Bills and Notes Act (Statutes of Canada, 1998, chapter 13) applies are not securities, but are financial assets if held in a securities account.

2008, c. 20, s. 15.

16. Options, other than options on futures contracts, issued by a clearing agency in favour of its members, and other similar obligations, are not securities but are financial assets.

2008, c. 20, s. 16.

17. Commodity futures contracts, security futures contracts, financial instrument futures contracts and other similar futures contracts as well as options on such contracts are neither securities nor financial assets.

They are however, for the purposes of security law, including the related publication rules and conflict of law rules, considered to be financial assets if held in a securities account.

2008, c. 20, s. 17.

DIVISION III OTHER GENERAL MATTERS CONCERNING TRANSFER OF SECURITY OR ESTABLISHMENT OF SECURITY ENTITLEMENT

§ 1 . — Notices relating to security or financial asset

I.  — General provisions

18. For the purposes of this Act, a person has notice of a fact if the person has received a notice of it, if the person has knowledge of it or if the fact comes to the person’s attention under circumstances in which a reasonable person would take cognizance of it.

2008, c. 20, s. 18.

19. A notice is considered to be given if the person giving the notice has taken such steps as may be reasonably required in the normal course to ensure that the other person receives the notice, whether or not the other person takes cognizance of it.

2008, c. 20, s. 19.

20. A notice is considered to be received by the person to whom it is addressed when

(1)  the notice comes to the person’s attention;

(2)  in the case of a notice under a contract, the notice is delivered to the place of business through which the contract was made; or

(3)  the notice is delivered to any other place held out by the person as the place for receipt of such notices.

2008, c. 20, s. 20.

21. A group, endowed with juridical personality or not, is considered to have notice of a fact concerning a particular transaction from the time when the fact is brought to the attention of the individual conducting the transaction on behalf of the group or would have been brought to the attention of that individual if the group had exercised due diligence.

A group exercises due diligence if it maintains reasonable routines for communicating significant information about a transaction to the individuals conducting the transaction on its behalf and there is reasonable compliance with those routines. Due diligence does not require an individual acting on behalf of the group to communicate information unless that communication is part of the individual’s regular duties or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.

2008, c. 20, s. 21.

22. A notice is to be communicated by sending a signed writing unless the person giving the notice and the person receiving the notice have agreed to other means.

2008, c. 20, s. 22.

II.  — Notice of adverse claim

23. A person has notice of an adverse claim if

(1)  the person knows of the adverse claim;

(2)  the person is aware of facts sufficient to indicate that there is a significant probability that the adverse claim exists and deliberately avoids information that would establish the existence of the adverse claim; or

(3)  the person has a duty, imposed by law, to investigate whether an adverse claim exists and the investigation, if carried out, would establish the existence of the adverse claim.

In this Act, “adverse claim” means a claim that the claimant has rights in a security or financial asset and that it is or would be a violation of the rights of the claimant for another person to hold, transfer or deal with the security or financial asset.

2008, c. 20, s. 23.

24. Having knowledge that a security or financial asset is being or has been transferred by a representative does not impose any duty of inquiry into the rightfulness of the transfer and is not notice of an adverse claim.

Despite the first paragraph, a person is considered to have notice of an adverse claim if the person knows that the representative is deriving a personal benefit from the transfer or is making the transfer in breach of a duty owed by the representative.

2008, c. 20, s. 24.

25. An act or event that creates a right to immediate performance of the principal obligation represented by a security certificate, or that sets a date on or after which a security certificate is to be presented or surrendered for redemption or exchange, does not by itself constitute notice of an adverse claim except in the case of a transfer that takes place more than one year after a date set for presentation or surrender for redemption or exchange, or more than six months after the date on which the amounts to be paid against presentation or surrender of the security certificate became available.

2008, c. 20, s. 25.

26. A purchaser of a certificated security is considered to have notice of an adverse claim if

(1)  the security certificate, whether in bearer form or registered form, has been endorsed “for collection” or “for surrender” or for some other purpose not involving a transfer; or

(2)  the security certificate is in bearer form and has on it an unambiguous statement that it is the property of a person other than the transferor.

The mere writing of a name on a security certificate does not by itself constitute an unambiguous statement that the security certificate is the property of a person other than the transferor.

2008, c. 20, s. 26.

27. Registration in the register of personal and movable real rights is not notice of an adverse claim to a security or financial asset.

2008, c. 20, s. 27.

§ 2 . — Terms of security

28. The terms of a certificated security include the terms stated on the security certificate and any terms made part of the security by reference on the security certificate to a juridical act or another document, to the extent that those terms are compatible with the terms stated on the security certificate.

The terms of an uncertificated security include the terms stated in any act or document under which the security is issued.

2008, c. 20, s. 28.

§ 3 . — Validity of security and signatures, certificates, issues, rights and transfer restrictions

29. A security is valid if it is issued in accordance with the issuer’s constituting instrument and with the provisions of the applicable law, determined according to the conflict of laws rules set out in the Civil Code.

2008, c. 20, s. 29.

30. A security with a defect going to its validity is enforceable against the issuer if held by a purchaser for value and without notice of the defect.

2008, c. 20, s. 30.

31. When the terms of a certificated security are made part of the security by reference on the security certificate to a juridical act or another document, the reference does not by itself constitute notice to a purchaser for value of a defect that goes to the validity of the security, even if the security certificate expressly states that a person accepting it admits notice.

2008, c. 20, s. 31.

32. An unauthorized signature placed on a security certificate before or in the course of issue is ineffective except that the signature is effective in favour of a purchaser for value of the security if the purchaser is without notice of the lack of authority and the signing has been done by

(1)  a trustee, transfer registrar, transfer agent or other person entrusted by the issuer with the signing or the preparation for signing of security certificates or with the authentication of the origin, genuineness and integrity of security certificates; or

(2)  an employee of the issuer, or of any persons referred to in paragraph 1, entrusted with handling of the security certificate.

2008, c. 20, s. 32.

33. Subject to section 32, evidence that a security certificate is forged or counterfeited is a complete defence, even against a purchaser for value and without notice of the defect.

2008, c. 20, s. 33.

34. All other defences of the issuer of a security that are not referred to in sections 31 to 33, including a defence based on a defect in the delivery of a security, are ineffective against a purchaser for value of the security who has taken the security without notice of the particular defence.

2008, c. 20, s. 34.

35. After an act or event that creates a right to immediate performance of the principal obligation represented by a certificated security or that sets a date on or after which the security is to be presented or surrendered for redemption or exchange, a purchaser is deemed to have notice of a defect in the security’s issue or of any other defect that may be raised by the issuer if

(1)  the act or event requires that, on presentation or surrender of the security certificate, money be paid, a certificated security be delivered or a transfer of an uncertificated security be registered, the money or security is available on the date set for redemption or exchange, and the purchaser takes delivery of the security more than one year after that date; or

(2)  the act or event is not one to which paragraph 1 applies and the purchaser takes delivery of the security more than two years after the date on which performance of the principal obligation became due or the date set for presentation or surrender.

This section does not apply to a call that has been revoked.

2008, c. 20, s. 35.

36. A charge in favour of an issuer encumbering a certificated security is enforceable against a purchaser only if it is noted conspicuously on the security certificate.

2008, c. 20, s. 36.

37. A restriction on the transfer of a security imposed by the issuer, even if otherwise lawful, is ineffective against a person without knowledge of the restriction unless

(1)  the security is a certificated security and the restriction is noted conspicuously on the security certificate; or

(2)  the security is an uncertificated security and the registered holder has received notice of the restriction.

2008, c. 20, s. 37.

38. If a security certificate contains the signatures necessary to the security’s issue or transfer but is incomplete in any other respect, any person may complete the security certificate by filling in the blanks in accordance with the person’s authority and, even if any of the blanks are incorrectly filled in, the security certificate as completed is enforceable by a purchaser who took the security for value and without notice of the incorrectness.

A security certificate that has been improperly altered, even if fraudulently, remains enforceable, but only according to its original terms.

2008, c. 20, s. 38.

§ 4 . — Purpose, nature and effectiveness of endorsement, instruction and entitlement order

I.  — Purpose and nature of endorsement, instruction and entitlement order

39. The transfer or redemption of a security is initiated by means of an endorsement or instruction and that of a financial asset, by means of an entitlement order.

In this Act,

“endorsement” means a signature that, alone or accompanied by other words, is made on a security certificate in registered form or on a separate document for the purpose of initiating the transfer or redemption of the security;

“entitlement order” means a notice communicated to a securities intermediary directing the transfer or redemption of a financial asset to which an entitlement holder has a security entitlement;

“instruction” means a notice communicated to the issuer of an uncertificated security that directs that the transfer of the security be registered or that the security be redeemed.

2008, c. 20, s. 39.

II.  — Effectiveness of endorsement, instruction and entitlement order

40. An endorsement, instruction or entitlement order is effective if

(1)  it is made by the appropriate person;

(2)  it is made by a representative of the appropriate person; or

(3)  the appropriate person has ratified it or is otherwise precluded from asserting its ineffectiveness.

2008, c. 20, s. 40.

41. In this Act, “appropriate person” means,

(1)  with respect to an endorsement, the person specified by a security certificate or by an effective special endorsement to be entitled to the security;

(2)  with respect to an instruction, the registered holder of an uncertificated security; and

(3)  with respect to an entitlement order, the entitlement holder.

2008, c. 20, s. 41.

42. Persons empowered by law to act for the appropriate person or to exercise an appropriate person’s rights in a security or financial asset, including as the administrator of the property of another, are considered to be the appropriate person’s representatives.

2008, c. 20, s. 42.

43. An endorsement, instruction or entitlement order made by a representative is effective even if

(1)  the representative has failed to comply with the instrument granting the representative authority or with the law governing the representative’s rights and duties, including any provisions requiring the representative to obtain court approval of the transfer or redemption; or

(2)  the representative’s action in making the endorsement, instruction or entitlement order or using the proceeds of the transaction is otherwise a breach of duty owed by the representative.

2008, c. 20, s. 43.

44. If a security is specially endorsed to a representative or registered in the name of a representative, or if a securities account is maintained in the name of a representative, an endorsement, instruction or entitlement order made by the representative is effective even if the representative is no longer serving in that capacity at the time the endorsement, instruction or entitlement order is made.

2008, c. 20, s. 44.

45. The effectiveness of an endorsement, instruction or entitlement order is determined as of the date that the endorsement, instruction or entitlement order is made.

2008, c. 20, s. 45.

§ 5 . — Overissues of securities

46. Except as otherwise provided in this subdivision, the provisions of this Act that make a security enforceable against an issuer despite a defence or defect or that compel a security’s issue or reissue do not apply to the extent that the application of such provisions would result in an overissue, that is, an issue of securities in excess of the number or amount that the issuer is authorized to issue.

2008, c. 20, s. 46.

47. If an identical security not constituting an overissue is reasonably available for purchase, a person entitled to the issue of a security, or a person entitled to enforce a security against an issuer despite a defence or defect as provided in sections 30 to 32 and 34, may compel the issuer to acquire the security and deliver it, if certificated, or register the transfer of the security, if uncertificated, against surrender of any security certificate the person holds.

If such a security is not reasonably available for acquisition, a person entitled to issue of a security may recover from the issuer the price that the last purchaser for value paid for the security.

2008, c. 20, s. 47.

48. An overissue is deemed not to have occurred if appropriate action has cured the overissue.

2008, c. 20, s. 48.

§ 6 . — Depositary’s or agent’s liability to adverse claimant

49. A depositary or agent, including a dealer, who has dealt with a security or other financial asset at the direction of a client or principal is not liable to a person having an adverse claim to the security or financial asset for any loss suffered by the person as a result, except if the depositary or agent

(1)  acted as directed after having been served with a judgment enjoining the depositary or agent from doing so and after having had a reasonable opportunity to abide by the judgment;

(2)  acted in collusion with the client or principal in violating the rights of the person who has the adverse claim; or

(3)  in the case of a security certificate that has been stolen, acted with notice of the adverse claim.

2008, c. 20, s. 49.

CHAPTER III TRANSFER OF SECURITY

DIVISION I DELIVERY AND RIGHTS OF PURCHASER

§ 1 . — Delivery

50. Delivery of a certificated security occurs when the purchaser acquires possession of the security certificate or another person acquires possession of the security certificate on behalf of the purchaser or, having previously acquired possession of the security certificate, acknowledges that the person holds the security certificate for the purchaser.

When the person who acquires possession of the security certificate on behalf of the purchaser is a securities intermediary, however, delivery of the certificated security only occurs if the security certificate is in registered form and

(1)  the security certificate is registered in the name of the purchaser;

(2)  the security certificate is payable to the order of the purchaser; or

(3)  the security certificate is specially endorsed to the purchaser by an effective endorsement and has not been endorsed to the securities intermediary or in blank.

2008, c. 20, s. 50.

51. Delivery of an uncertificated security occurs when the issuer registers the purchaser as the registered holder, on the original issue or the registration of transfer, or another person, other than a securities intermediary, either becomes the registered holder of the uncertificated security on behalf of the purchaser or, having previously become the registered holder, acknowledges that the person holds the uncertificated security for the purchaser.

2008, c. 20, s. 51.

§ 2 . — Rights of purchaser

52. A purchaser of a security acquires all rights in the security that the transferor had or had power to transfer.

2008, c. 20, s. 52.

53. A protected purchaser acquires rights in the security free of any adverse claim.

A protected purchaser is a purchaser who purchases a security for value, does not, at the time of the purchase, have notice of any adverse claim, and obtains control of the security.

2008, c. 20, s. 53.

54. The purchaser of a certificated security who as a previous holder had notice of an adverse claim does not improve that purchaser’s position by virtue of taking from a protected purchaser.

2008, c. 20, s. 54.

55. A purchaser has control of a certificated security that is in bearer form if the certificated security is delivered to the purchaser. A purchaser has control of a certificated security that is in registered form if the certificated security is delivered to the purchaser and the security certificate is endorsed to the purchaser or in blank by an effective endorsement or is registered in the name of the purchaser at the time of the original issue or registration of transfer by the issuer.

2008, c. 20, s. 55.

56. A purchaser has control of an uncertificated security if the uncertificated security is delivered to the purchaser or the purchaser enters with the issuer of the security into an agreement, called “control agreement”, under the terms of which the issuer agrees to comply with instructions that are originated by the purchaser without the further consent of the registered holder.

A purchaser has control of an uncertificated security even if the registered holder retains the right to originate instructions to the issuer, to make substitutions for the uncertificated security or to otherwise dispose of the uncertificated security.

2008, c. 20, s. 56.

57. The following rules apply to a control agreement regarding an uncertificated security:

(1)  the issuer may not enter into a control agreement without the consent of the registered holder;

(2)  the issuer is not required to confirm the existence of a control agreement to a third person unless requested to do so by the registered holder;

(3)  the issuer is not required to enter into a control agreement even if the registered holder so requests; and

(4)  a purchaser who is party to a control agreement is considered to be the representative of the registered holder for the purposes of any instruction.

2008, c. 20, s. 57.

58. Unless otherwise agreed, a purchaser of a certificated or uncertificated security has a right to require that the transferor supply the purchaser, on demand, with proof of entitlement to the security or of authority to transfer or with any other requisite necessary to obtain registration of the transfer of the security. If the purchase is not for value, the purchaser may so require only on payment of the necessary expenses.

If the transferor fails within a reasonable time to comply with the demand, the purchaser may reject the transfer or consider the transfer contract to be rescinded.

2008, c. 20, s. 58.

DIVISION II ENDORSEMENT AND INSTRUCTION

§ 1 . — Endorsement

59. An endorsement of a security certificate may be in blank or special.

An endorsement in blank includes an endorsement to bearer.

For an endorsement to be a special endorsement, the endorsement must specify to whom the security is to be transferred or who has the power to transfer the security.

The certificate holder may convert an endorsement in blank to a special endorsement.

2008, c. 20, s. 59.

60. A partial endorsement, that is, an endorsement in respect of only some of the securities represented by the certificate, is effective only if the securities are intended by the issuer to be separately transferable.

2008, c. 20, s. 60.

61. An endorsement of a security certificate, whether special or in blank, does not constitute a transfer of the security until the delivery of the security certificate on which the endorsement appears or, if the endorsement is on a separate document, until the delivery of both the security certificate and the document on which the endorsement appears.

2008, c. 20, s. 61.

62. If a security certificate in registered form has been delivered to a purchaser without a necessary endorsement, the transfer is complete against the transferor on delivery.

However, the purchaser may become a protected purchaser only when the endorsement is supplied, and has a right to have any necessary endorsement supplied at any time.

2008, c. 20, s. 62.

63. An endorsement of a security certificate in bearer form may constitute notice of an adverse claim to the security certificate, but does not otherwise affect any right that the certificate holder has.

2008, c. 20, s. 63.

§ 2 . — Instruction

64. An instruction originated by the appropriate person with respect to an uncertificated security may, if necessary, be completed by any person in accordance with the person’s authority.

The issuer may rely on the instruction as completed, even if it has been completed incorrectly.

2008, c. 20, s. 64.

DIVISION III WARRANTIES

§ 1 . — Warranties by endorser or originator

65. A person who endorses a security certificate warrants to the purchaser for value and to any subsequent purchaser that

(1)  the security certificate is neither forged nor counterfeited and has not been materially altered;

(2)  the endorser does not know of any fact that might impair the validity of the security;

(3)  there is no adverse claim to the security;

(4)  the transfer does not violate any restriction on transfer;

(5)  the endorsement is made by the appropriate person or, if the endorser is a representative of the appropriate person, the endorser has actual authority to act on behalf of the appropriate person; and

(6)  the transfer is otherwise effective and rightful.

2008, c. 20, s. 65.

66. A person who endorses a security certificate warrants to the issuer that there is no adverse claim to the security and that the endorsement is effective.

2008, c. 20, s. 66.

67. A person who originates an instruction for the registration of transfer of an uncertificated security to a purchaser for value of the security warrants to the purchaser that

(1)  the instruction is made by the appropriate person or, if the originator is a representative of the appropriate person, the originator has actual authority to act on behalf of the appropriate person;

(2)  the security is valid;

(3)  there is no adverse claim to the security; and

(4)  at the time that the instruction is presented to the issuer, the purchaser will be entitled to the registration of transfer, the transfer will be registered by the issuer free from all prior claims, hypothecs, restrictions and claims other than those specified in the instruction, the transfer will not violate any restriction on transfer, and the transfer will otherwise be effective and rightful.

2008, c. 20, s. 67.

68. A person who originates an instruction for the registration of transfer of an uncertificated security warrants to the issuer that the instruction is effective and that, at the time that the instruction is presented to the issuer, the purchaser will be entitled to the registration of transfer.

2008, c. 20, s. 68.

69. Unless otherwise agreed, a person making an endorsement or originating an instruction does not warrant that the security will be honoured by the issuer and makes only the warranties set out in this subdivision.

2008, c. 20, s. 69.

§ 2 . — Warranty on signature, endorsement or instruction

70. A person who guarantees a signature of an endorser of a security certificate warrants that, at the time of signing,

(1)  the signature was neither forged nor counterfeited;

(2)  the signer was the appropriate person to endorse or, if the signature is by a representative of the appropriate person, the representative had actual authority to act on behalf of the appropriate person; and

(3)  the signer had legal capacity to sign.

2008, c. 20, s. 70.

71. A person who guarantees a signature of the originator of an instruction warrants that, at the time of signing,

(1)  the signature was neither forged nor counterfeited;

(2)  if the person specified in the instruction as the registered holder was, in fact, the registered holder at that time, the instruction was effective; and

(3)  the signer had legal capacity to sign.

A person who guarantees a signature of the originator of an instruction does not by that guarantee warrant that the person who is specified in the instruction as the registered holder is in fact the registered holder.

2008, c. 20, s. 71.

72. A person who specially guarantees the signature of an originator of an instruction makes the warranties of a signature guarantor under section 71 and also warrants that, at the time that the instruction is presented to the issuer,

(1)  the person specified in the instruction as the registered holder of the security will in fact be the registered holder of the security; and

(2)  the transfer of the security will be registered by the issuer free from all prior claims, hypothecs, restrictions and claims other than those specified in the instruction.

2008, c. 20, s. 72.

73. A signature guarantor does not warrant the rightfulness of the transfer otherwise than under sections 70 to 72.

2008, c. 20, s. 73.

74. A person who guarantees an endorsement of a security certificate makes the warranties of a signature guarantor and also warrants the rightfulness of the transfer in all respects.

2008, c. 20, s. 74.

75. A person who guarantees an instruction that requests the transfer of an uncertificated security makes the warranties of a special signature guarantor and also warrants the rightfulness of the transfer in all respects.

2008, c. 20, s. 75.

76. An issuer may not require a special guarantee of signature, a guarantee of endorsement or a guarantee of instruction as a condition to the registration of transfer.

2008, c. 20, s. 76.

77. The warranties under this subdivision are made to a person taking or dealing with the security in reliance on the guarantee and the guarantor is liable to the person for any loss resulting from any breach of those warranties.

An endorser or an originator of an instruction whose signature, endorsement or instruction has been guaranteed is liable to a guarantor for any loss resulting from any breach of the warranties of the guarantor.

2008, c. 20, s. 77.

§ 3 . — Other warranties

78. A person signing a security certificate in a capacity such as trustee, transfer registrar or transfer agent for the purpose of certifying the origin, genuineness and integrity of the security certificate for the issuer warrants to the purchaser for value of the security, if the purchaser is without notice of a particular defect in respect of that security, that

(1)  the security certificate is neither forged nor counterfeited;

(2)  the person is acting within the person’s capacity and within the scope of the authority received by the person from the issuer; and

(3)  the person has reasonable grounds to believe that the security is in the form and within the amount the issuer is authorized to issue.

Unless otherwise agreed, the person signing the security certificate does not assume responsibility for the validity of the security in any respect other than that set out in the first paragraph.

2008, c. 20, s. 78.

79. A person who transfers a certificated security to a purchaser for value otherwise than by endorsement warrants to the purchaser that

(1)  the security certificate is neither forged nor counterfeited and has not been materially altered;

(2)  the transferor does not know of any fact that might impair the validity of the security;

(3)  there is no adverse claim to the security;

(4)  the transfer does not violate any restriction on transfer; and

(5)  the transfer is otherwise effective and rightful.

2008, c. 20, s. 79.

80. A person who transfers an uncertificated security to a purchaser for value and does not originate an instruction in connection with the transfer warrants to the purchaser that

(1)  the security is valid;

(2)  there is no adverse claim to the security;

(3)  the transfer does not violate any restriction on transfer; and

(4)  the transfer is otherwise effective and rightful.

2008, c. 20, s. 80.

81. A person who presents a security certificate for the registration of transfer or for payment, redemption or exchange warrants to the issuer that the person is entitled to the registration, payment, redemption or exchange, but a purchaser for value and without notice of adverse claims to whom transfer is registered warrants to the issuer only that the person has no knowledge of any unauthorized signature in a necessary endorsement.

2008, c. 20, s. 81.

82. A person who, as an agent, delivers a security certificate that the person has received from the principal or from a third person at the direction of the principal, to a purchaser who knows the identity of the principal, warrants to the purchaser only that the delivering person has authority to act for the principal and does not know of any adverse claim to the certificated security.

2008, c. 20, s. 82.

83. A secured creditor who redelivers a security certificate received from a debtor or, after payment and on order of the debtor, delivers the security certificate to a third person, makes only the warranties of an agent set out in section 82.

2008, c. 20, s. 83.

84. Subject to section 82, a dealer acting for a client makes to the issuer or a purchaser the warranties set out in sections 65 to 68, 79 and 81.

A dealer that delivers a security certificate to the dealer’s client makes to the dealer’s client the warranties set out in sections 65 and 79 and has the rights of a purchaser provided under sections 65, 79, 82 and 83.

A dealer that causes the dealer’s client to be registered as the holder of an uncertificated security makes to the client the warranties set out in sections 67 and 80 and has the rights of a purchaser provided under those sections.

The warranties of and in favour of a dealer under this section are in addition to the warranties given by and in favour of the dealer’s client.

2008, c. 20, s. 84.

DIVISION IV REGISTRATION OF TRANSFER

§ 1 . — Conditions for registration

85. If an endorsed security certificate in registered form is presented to an issuer with a request to register a transfer of the certificated security or an instruction is presented to an issuer with a request to register a transfer of an uncertificated security, the issuer registers the transfer as requested if

(1)  under the terms of the security, the purchaser is eligible to have the security registered in that person’s name;

(2)  the endorsement or instruction is made by the appropriate person or by that person’s representative;

(3)  reasonable assurance is given that the endorsement or instruction is neither forged nor counterfeited and is authorized;

(4)  any applicable fiscal law that imposes duties on the issuer at the time of the transfer has been complied with;

(5)  the transfer does not violate any restriction on transfer imposed by the issuer that is enforceable against the purchaser or imposed by law; and

(6)  the transfer is rightful or is to a protected purchaser.

2008, c. 20, s. 85.

86. An issuer may require the following assurance that each endorsement or each instruction is neither forged nor counterfeited and is authorized:

(1)  a guarantee of the signature of the person making the endorsement or originating the instruction, given by a guarantor reasonably believed by the issuer to be a responsible person;

(2)  if the endorsement is made or the instruction is originated by a representative of the appropriate person, appropriate evidence of actual authority to act on the appropriate person’s behalf; or

(3)  if the endorsement is made or the instruction is originated by a person not referred to in subparagraph 2, assurance appropriate to the case corresponding as nearly as may be to the assurance required by that subparagraph.

An issuer may adopt standards for the purpose of determining whether a guarantor is a responsible person, so long as those standards are not manifestly unreasonable.

2008, c. 20, s. 86.

87. In the case of a representative who is designated by a court, any document issued by or under the direction or supervision of the court or an officer of the court and dated within 60 days before the date of presentation for transfer is appropriate evidence of the representative’s authority to act on the appropriate person’s behalf.

In any other case, a copy of a document showing that the representative has the authority to act on the appropriate person’s behalf, a certificate certifying that authority issued by a person reasonably believed by the issuer to be a responsible person or, in the absence of such a document or certificate, other evidence that the issuer reasonably considers appropriate is appropriate evidence of the representative’s authority to act on the appropriate person’s behalf.

2008, c. 20, s. 87.

88. An issuer may elect to require assurance beyond that specified in section 86 that an endorsement or instruction is neither forged nor counterfeited and is authorized, provided that such assurance is reasonable in the circumstances.

2008, c. 20, s. 88.

89. A person who is the appropriate person to make an endorsement or to originate an instruction may demand that the issuer not register a transfer of the security.

The demand is made by communicating a notice to the issuer setting out, among other things, the identity of the registered holder, the issue of which the security is a part, and the correspondence address of the person making the demand.

The issuer is under a duty to consider the demand only if the issuer has had a reasonable opportunity to act on it, having regard to the circumstances of receipt of the demand.

2008, c. 20, s. 89.

90. If, after a demand that the issuer not register a transfer of a security, a certificated security is presented to an issuer with a request to register a transfer or an instruction is presented to an issuer with a request to register an uncertificated security, the issuer promptly gives a notice to each interested person who initiated the demand, presented the request or originated the instruction.

The notice must state expressly

(1)  that a request to register the transfer of the security has been presented to or an instruction for the registration of transfer of the security has been received by the issuer;

(2)  that a demand that the issuer not register the transfer had previously been received; and

(3)  that the issuer will withhold registration of transfer for a period of time stated in the notice in order to provide the person entitled to the security an opportunity to either obtain a judgment enjoining the issuer from registering the transfer or furnish security sufficient in the issuer’s judgment to protect the issuer or a transfer registrar, transfer agent or other representative of the issuer from any loss that those persons may suffer by refusing to register the transfer.

The period of time stated in the notice may not exceed 30 days from the date on which the notice is given. The notice may specify a shorter period so long as it is not manifestly unreasonable.

2008, c. 20, s. 90.

§ 2 . — Issuer’s duties

91. Before due presentation for registration of transfer of a certificated security in registered form or the receipt of an instruction for registration of transfer of an uncertificated security, the issuer or the issuer’s representative may treat the registered holder as the person exclusively entitled to vote, to receive notices, to receive any payments, dividends or other distributions and to otherwise exercise all the rights and powers of a registered holder.

2008, c. 20, s. 91.

92. An issuer that refuses or fails to register or unreasonably delays registering the transfer of a security despite the registration conditions being met is liable for any loss suffered as a result of the refusal, failure or delay by the person who presented the request to register the transfer or originated the instruction requesting the registration of transfer or by that person’s principal.

When an issuer has received an effective demand from the person entitled to the security that the issuer not register a transfer, the registration conditions are considered to be met if the person has not, within the time allotted, either obtained a judgment enjoining the issuer from registering the transfer or furnished the security required by the issuer.

2008, c. 20, s. 92.

93. An issuer is not liable, to an appropriate person who initiated a demand that the issuer not register a transfer, for any loss that the person suffers as a result of the registration of a transfer in accordance with an effective endorsement or instruction if the person has not, within the time allotted, either obtained a judgment enjoining the issuer from registering the transfer or furnished the security required by the issuer.

2008, c. 20, s. 93.

94. An issuer is liable for wrongful registration of transfer.

Wrongful registration of transfer is registration of a transfer of a security to a person not entitled to the security when the transfer is registered by the issuer

(1)  under an ineffective endorsement or instruction;

(2)  without complying, in accordance with section 90, with an effective demand that the issuer not register the transfer which the issuer was under a duty to consider;

(3)  after the issuer had been served with a judgment enjoining the issuer from registering the transfer and had a reasonable opportunity to abide by the judgment before registering the security; or

(4)  acting in collusion with the person who requested the registration.

2008, c. 20, s. 94.

95. Subject to any applicable fiscal law that imposes duties on the issuer at the time of transfer, an issuer is liable for the loss resulting from registration of the transfer of a security under an effective endorsement or instruction only if the registration otherwise constitutes wrongful registration within the meaning of section 94.

2008, c. 20, s. 95.

96. An issuer that is liable for wrongful registration of transfer must, if the person entitled to the security so requests, provide the person with an identical certificated or uncertificated security, as the case may be, and with any payments, dividends or other distributions that the person did not receive as a result of the wrongful registration.

If the provision of a like security would result in an overissue, the issuer’s liability to provide the person with an identical security is governed by section 47.

2008, c. 20, s. 96.

97. If the registered holder of a certificated security, whether in registered form or bearer form, claims that the security certificate has been lost, wrongfully taken or destroyed, the issuer must issue a new security certificate if the registered holder

(1)  so requests before the issuer has notice that the lost, wrongfully taken or allegedly destroyed security certificate has been delivered to a protected purchaser;

(2)  provides security sufficient in the issuer’s judgment to protect the issuer from any loss that the issuer may suffer by issuing a new certificate; and

(3)  satisfies any other reasonable requirements imposed by the issuer.

2008, c. 20, s. 97.

98. If, after the issue of a new security certificate, a protected purchaser of the lost, wrongfully taken or allegedly destroyed security certificate presents that security certificate for the registration of the transfer of the security, the issuer must register the transfer, as requested by that purchaser.

This rule does not apply if the registration of the transfer would result in an overissue, in which case the issuer’s liability to the protected purchaser is governed by section 47.

An issuer that suffers a loss as a result of the application of this section may exercise against the registered holder to whom the issuer issued a new security certificate all the rights the issuer may have under the security provided by the registered holder.

2008, c. 20, s. 98.

99. Despite any contrary provision in this subdivision, the registered holder of a security may not assert a claim under section 96 or 98 against the issuer if

(1)  the holder had notice of the fact that the security certificate had been lost, wrongfully taken or destroyed but failed to give a notice to the issuer of that fact within a reasonable time; and

(2)  the issuer registered a transfer of the security before receiving a notice of the loss, wrongful taking or destruction of the security certificate.

2008, c. 20, s. 99.

100. A person who, in a capacity such as trustee, transfer registrar or transfer agent, is entrusted with certifying the origin, genuineness and integrity of securities for an issuer in the registration of a transfer of the issuer’s securities, in the issue of new security certificates or uncertificated securities or in the cancellation of security certificates has the same obligation and liability to the registered holder of a security with regard to the particular function performed as the issuer has in regard to that function.

2008, c. 20, s. 100.

101. Nothing in this subdivision relieves an issuer from liability for loss resulting from the registration of a transfer under an endorsement or instruction that was not effective.

2008, c. 20, s. 101.

102. Nothing in this Act affects the liability of the registered holder of a security for a call, assessment or the like.

2008, c. 20, s. 102.

CHAPTER IV ESTABLISHMENT OF SECURITY ENTITLEMENT

DIVISION I ESTABLISHMENT OF SECURITY ENTITLEMENT AND RIGHTS OF ENTITLEMENT HOLDER OR OTHER PURCHASER

§ 1 . — Establishment of security entitlement

103. A person acquires a security entitlement and so becomes the entitlement holder if a securities intermediary

(1)  indicates, by book entry, that a financial asset has been credited to the person’s securities account;

(2)  receives a financial asset from the person or acquires a financial asset for the person and, in either case, accepts it for credit to the person’s securities account; or

(3)  becomes obligated under another law, regulation or rule or under a judgment to credit a financial asset to the person’s securities account.

2008, c. 20, s. 103.

104. A person may have a security entitlement even if the securities intermediary does not itself hold the financial asset.

2008, c. 20, s. 104.

105. A person is not considered to have a security entitlement with respect to a financial asset if a securities intermediary holds the financial asset for that person and the financial asset

(1)  is registered in the name of, payable to the order of or specially endorsed to that person; and

(2)  has not been endorsed to the securities intermediary or in blank.

2008, c. 20, s. 105.

106. Issuance of a security does not in itself establish a security entitlement.

2008, c. 20, s. 106.

§ 2 . — Rights of entitlement holder or other purchaser

107. To the extent necessary for a securities intermediary to satisfy all security entitlements with respect to a particular financial asset, all rights in that financial asset held by the securities intermediary are held by the securities intermediary for the entitlement holders, are not the property of the securities intermediary, and are not subject to claims of creditors of the securities intermediary except as otherwise provided in section 130.

Each entitlement holder has a proportionate right with respect to that financial asset, without regard to the time that the entitlement holder acquired the security entitlement or the time that the securities intermediary acquired the rights in that financial asset.

2008, c. 20, s. 107.

108. An entitlement holder’s rights may only be enforced against the securities intermediary and only by the exercise of the entitlement holder’s rights under the provisions of Division II of this chapter that relate to the duties of all securities intermediaries.

2008, c. 20, s. 108.

109. Despite section 108, an entitlement holder’s rights with respect to a financial asset may be enforced against a purchaser of the financial asset, or rights in it, if

(1)  bankruptcy or insolvency proceedings have been initiated by or against the securities intermediary;

(2)  the securities intermediary does not have sufficient rights in the financial asset to satisfy the security entitlements of all of its entitlement holders to that financial asset; and

(3)  the securities intermediary violated its obligations under section 116 by transferring rights in the financial asset to the purchaser.

A trustee or liquidator acting on behalf of all entitlement holders having security entitlements to a particular financial asset may exercise the entitlement holders’ rights. If the trustee or liquidator does not take action, the entitlement holders may each exercise their rights against the purchaser.

An action based on the entitlement holder’s rights with respect to a particular financial asset, however framed, may not be brought against any purchaser of a financial asset who purchases the financial asset for value, obtains control or possession of the financial asset, and does not act in collusion with the securities intermediary in violating the securities intermediary’s obligations under section 116.

2008, c. 20, s. 109.

110. An action based on an adverse claim to a financial asset, however framed, may not be brought against the entitlement holder if the entitlement holder acquired the security entitlement for value and did not, at the time of the acquisition, have notice of the adverse claim.

2008, c. 20, s. 110.

111. Subject to the provisions of the Civil Code regarding hypothecs and the provisions of Division IV of this chapter regarding priority rules, an action based on an adverse claim to a security entitlement or the financial asset to which an entitlement holder has a security entitlement, however framed, may not be brought against a purchaser of the security entitlement who purchased the security entitlement from the entitlement holder if the purchaser is a protected purchaser or if such an action could not have been brought against the entitlement holder under section 110.

2008, c. 20, s. 111.

112. The purchaser of a security entitlement is a protected purchaser if the purchaser purchases the security entitlement for value, does not, at the time of the purchase, have notice of any adverse claim to the security, and obtains control of the security entitlement.

2008, c. 20, s. 112.

113. A purchaser of a security entitlement has control of the security entitlement if

(1)  the purchaser becomes the entitlement holder;

(2)  the purchaser enters with the securities intermediary into an agreement, called “control agreement”, under the terms of which the securities intermediary agrees to comply with entitlement orders that are originated by the purchaser without the further consent of the entitlement holder; or

(3)  another person has control of the security entitlement on behalf of the purchaser or, having previously obtained control of the security entitlement, acknowledges that the person has control on behalf of the purchaser.

A purchaser has control of the security entitlement even if the entitlement holder retains the right to originate entitlement orders to the securities intermediary, to make substitutions for the security entitlement or to otherwise dispose of the security entitlement.

2008, c. 20, s. 113.

114. The following rules apply to a control agreement relating to a security entitlement:

(1)  the securities intermediary may not enter into a control agreement without the prior consent of the entitlement holder;

(2)  the securities intermediary is not required to confirm the existence of a control agreement to a third person unless requested to do so by the entitlement holder;

(3)  the securities intermediary is not required to enter into a control agreement with the purchaser even if the entitlement holder so requests; and

(4)  a purchaser that is party to a control agreement is considered to be the representative of the entitlement holder for the purposes of any entitlement order.

2008, c. 20, s. 114.

§ 3 . — Status of securities intermediary as purchaser

115. A securities intermediary that receives a financial asset and establishes a security entitlement to the financial asset in favour of the holder of a securities account maintained by the securities intermediary is considered to be a purchaser for value of the financial asset.

A securities intermediary that acquires a security entitlement to a financial asset from another securities intermediary is considered to acquire the security entitlement for value if the securities intermediary acquiring the security entitlement establishes a security entitlement to the financial asset in favour of the holder of a securities account maintained by the securities intermediary.

If rights in a security entitlement are granted by the holder of a securities account to the securities intermediary that maintains that account, the securities intermediary is considered to have control of the security entitlement.

2008, c. 20, s. 115.

DIVISION II DUTIES OF SECURITIES INTERMEDIARY

116. A securities intermediary must promptly obtain and then maintain a financial asset in a quantity corresponding to the aggregate of all security entitlements that the securities intermediary has established in favour of its entitlement holders with respect to that financial asset.

The securities intermediary may maintain the financial asset directly or through one or more other securities intermediaries. Except to the extent otherwise agreed to by its entitlement holder, a securities intermediary may not encumber the financial asset with a security.

This section does not apply to a clearing agency that is itself the obligor of an option or similar obligation to which its entitlement holders have security entitlements.

2008, c. 20, s. 116.

117. A securities intermediary must take action to obtain a payment, dividend or other distribution made by the issuer of a financial asset.

On receiving a payment, dividend or other distribution from the issuer of a financial asset, the securities intermediary is obligated to its entitlement holders having security entitlements to the financial asset.

2008, c. 20, s. 117.

118. A securities intermediary must exercise rights with respect to a financial asset if directed to do so by an entitlement holder.

2008, c. 20, s. 118.

119. A securities intermediary must comply with an entitlement order within a reasonable time if the securities intermediary has had a reasonable opportunity to assure itself that the entitlement order is effective.

2008, c. 20, s. 119.

120. A securities intermediary that has transferred a financial asset in accordance with an effective entitlement order is not liable for any loss suffered as a result of the transfer by a person having an adverse claim to the financial asset unless

(1)  the securities intermediary transferred the financial asset after being served with a judgment enjoining the securities intermediary from doing so and after having a reasonable opportunity to abide by the judgment;

(2)  the securities intermediary acted in collusion with the originator of the entitlement order in violating the rights of the person who has the adverse claim; or

(3)  in the case of a stolen security certificate, the securities intermediary acted with notice of the adverse claim.

2008, c. 20, s. 120.

121. If a securities intermediary transfers a financial asset under an ineffective entitlement order, the securities intermediary must re-establish a security entitlement in favour of the previous entitlement holder and pay or credit any payments, dividends or other distributions that the previous entitlement holder did not receive as a result of the wrongful transfer.

2008, c. 20, s. 121.

122. A securities intermediary must act at the direction of an entitlement holder to change a security entitlement, when possible, into a security or another available form of holding or to cause the financial asset to be transferred to a securities account of the entitlement holder with another securities intermediary.

2008, c. 20, s. 122.

123. A securities intermediary is considered to satisfy the duties imposed under this division if the securities intermediary acts with respect to the duty as agreed between the entitlement holder and the securities intermediary or, in the absence of such an agreement, the securities intermediary exercises due care.

In the case of the duty imposed under section 118, the securities intermediary is considered to satisfy that duty if, in the absence of an agreement with the entitlement holder, the securities intermediary acts so as to enable the entitlement holder to directly exercise the entitlement holder’s rights under that section.

2008, c. 20, s. 123.

124. Subject to specific standards specified by another law, regulation, rule or by a contract, a securities intermediary and an entitlement holder must perform their duties and exercise their rights under this division in a commercially reasonable manner.

2008, c. 20, s. 124.

125. If the substance of a duty imposed on a securities intermediary under this division is the subject of another law, regulation or rule, compliance with that other law, regulation or rule is considered to satisfy the duty.

Nothing in this division requires a securities intermediary to take any action that is otherwise prohibited by another law, regulation or rule. Nothing in this division prevents a securities intermediary from exercising its rights arising out of a security on a financial asset or from invoking exception for nonperformance against an entitlement holder who has obligations to the securities intermediary.

2008, c. 20, s. 125.

DIVISION III WARRANTIES

126. A person who originates an entitlement order to a securities intermediary warrants to the securities intermediary

(1)  that the person is the appropriate person or has the authority to act on behalf of the appropriate person; and

(2)  that there is no adverse claim to the financial asset.

2008, c. 20, s. 126.

127. A person who delivers a security certificate to a securities intermediary for credit to a securities account makes to the securities intermediary the warranties set out in section 65 or 79, according to whether the certificate is in registered form or bearer form.

A person who directs a securities intermediary to credit an uncertificated security to a securities account makes to the securities intermediary the warranties set out in section 67.

2008, c. 20, s. 127.

128. A securities intermediary that delivers a security certificate to an entitlement holder makes to the entitlement holder the warranties set out in section 65 or 79, according to whether the certificate is in registered form or bearer form.

A securities intermediary that causes an entitlement holder to be registered as the holder of an uncertificated security makes to the entitlement holder the warranties set out in section 67 or 80, as applicable.

2008, c. 20, s. 128.

DIVISION IV PRIORITY RULES

129. A purchaser for value of rights in a security entitlement who obtains control of the security entitlement has priority over such a purchaser who does not obtain control. When two or more such purchasers have control of a security entitlement, the purchaser who first obtained control has priority over the other; however, the purchaser who obtains control by becoming the person for whom the securities account in which the security entitlement is carried is maintained has priority.

A securities intermediary as purchaser always has priority over a conflicting purchaser who has control of the security entitlement.

The rules set out in this section apply subject to the rules set out in the Civil Code with regard to hypothecs.

2008, c. 20, s. 129.

130. If a securities intermediary does not have sufficient rights in a financial asset to satisfy both the securities intermediary’s obligations to entitlement holders who have security entitlements to that financial asset and the securities intermediary’s obligation to a creditor of the securities intermediary who has a security on that financial asset, the claims of entitlement holders have priority over the claim of the creditor.

However, the claim of a creditor of a securities intermediary that has a security on a financial asset held by a securities intermediary has priority over claims of the securities intermediary’s entitlement holders who have security entitlements with respect to that financial asset if

(1)  the securities intermediary is a clearing agency; or

(2)  the creditor has control of the financial asset.

2008, c. 20, s. 130.

CHAPTER V AMENDING PROVISIONS

131. (Omitted).

2008, c. 20, s. 131.

132. (Omitted).

2008, c. 20, s. 132.

133. (Omitted).

2008, c. 20, s. 133.

134. (Omitted).

2008, c. 20, s. 134.

135. (Omitted).

2008, c. 20, s. 135.

136. (Omitted).

2008, c. 20, s. 136.

137. (Omitted).

2008, c. 20, s. 137.

138. (Omitted).

2008, c. 20, s. 138.

139. (Omitted).

2008, c. 20, s. 139.

CHARTER OF VILLE DE MONTRÉAL

140. (Amendment integrated into c. C-11.4, Schedule C).

2008, c. 20, s. 140.

CITIES AND TOWNS ACT

141. (Amendment integrated into c. C-19, s. 549).

2008, c. 20, s. 141.

142. (Amendment integrated into c. C-19, s. 551).

2008, c. 20, s. 142.

CODE OF CIVIL PROCEDURE

143. (Amendment integrated into c. C-25, heading of Section III before article 617).

2008, c. 20, s. 143.

144. (Amendment integrated into c. C-25, aa. 617 to 619.2).

2008, c. 20, s. 144.

145. (Amendment integrated into c. C-25, a. 620).

2008, c. 20, s. 145.

146. (Amendment integrated into c. C-25, a. 621).

2008, c. 20, s. 146.

147. (Amendment integrated into c. C-25, a. 622).

2008, c. 20, s. 147.

148. (Amendment integrated into c. C-25, a. 623).

2008, c. 20, s. 148.

149. (Amendment integrated into c. C-25, a. 624).

2008, c. 20, s. 149.

MUNICIPAL CODE OF QUÉBEC

150. (Amendment integrated into c. C-27.1, a. 1068).

2008, c. 20, s. 150.

151. (Omitted).

2008, c. 20, s. 151.

152. (Amendment integrated into c. C-27.1, a. 1087).

2008, c. 20, s. 152.

153. (Amendment integrated into c. C-27.1, a. 1088).

2008, c. 20, s. 153.

ACT RESPECTING THE COMMUNAUTÉ MÉTROPOLITAINE DE MONTRÉAL

154. (Amendment integrated into c. C-37.01, s. 203).

2008, c. 20, s. 154.

COMPANIES ACT

155. (Amendment integrated into c. C-38, s. 46).

2008, c. 20, s. 155.

156. (Amendment integrated into c. C-38, s. 48).

2008, c. 20, s. 156.

157. (Amendment integrated into c. C-38, s. 54).

2008, c. 20, s. 157.

158. (Omitted).

2008, c. 20, s. 158.

159. (Amendment integrated into c. C-38, s. 123.44).

2008, c. 20, s. 159.

160. (Amendment integrated into c. C-38, s. 123.93).

2008, c. 20, s. 160.

161. (Amendment integrated into c. C-38, s. 144).

2008, c. 20, s. 161.

162. (Amendment integrated into c. C-38, s. 146).

2008, c. 20, s. 162.

163. (Amendment integrated into c. C-38, s. 152).

2008, c. 20, s. 163.

164. (Omitted).

2008, c. 20, s. 164.

ACT RESPECTING MUNICIPAL DEBTS AND LOANS

165. (Amendment integrated into c. D-7, s. 24).

2008, c. 20, s. 165.

166. (Amendment integrated into c. D-7, s. 25).

2008, c. 20, s. 166.

167. (Omitted).

2008, c. 20, s. 167.

168. (Amendment integrated into c. D-7, s. 28).

2008, c. 20, s. 168.

169. (Amendment integrated into c. D-7, s. 29).

2008, c. 20, s. 169.

SECURITIES ACT

170. (Omitted).

2008, c. 20, s. 170.

CHAPTER VI MISCELLANEOUS AND TRANSITIONAL PROVISIONS

171. The Minister of Justice is responsible for the administration of this Act.

2008, c. 20, s. 171.

172. The provisions of this Act are not applicable to proceedings pending on 1 January 2009.

2008, c. 20, s. 172.

173. Movable hypothecs with delivery effected by the creditor obtaining control of securities or security entitlements within the meaning of this Act may not be cancelled or declared unenforceable against third persons on the grounds that control of the securities or security entitlements, though obtained in the manner provided for by that Act, was obtained before 1 January 2009.

2008, c. 20, s. 173.

174. Movable hypothecs with delivery which became enforceable against third persons before 1 January 2009 after being published in a manner not recognized by the new provisions enacted by this Act retain their original enforceability provided they are published in the year that follows that date in accordance with the law in force at the time of publication. In the absence of such publication, the initial publication of those hypothecs ceases to have effect on the expiry of that year.

For the sole purposes of the first paragraph, hypothecs published by registration in the register of personal and movable real rights will in all cases be considered to be published in accordance with the law in force at the time of publication.

2008, c. 20, s. 174.

175. This Act applies to hypothecs referred to in sections 173 and 174, especially as regards their publication or their ranking among themselves or in relation to other hypothecs on the same securities or security entitlements.

2008, c. 20, s. 175.

176. (Omitted).

2008, c. 20, s. 176.