Vancouver Foundation Act

[STATUTORY REVISION]

[SBC 2000] CHAPTER 32

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

Contents
Section
  Definitions
  Act to be given liberal construction
  Vancouver Foundation continued
  Objects of the foundation
  Board of directors
  Appointment and replacement of board members
  Powers in relation to property
  Specific powers in relation to investments
  Establishment of trust funds
  10 Distribution of returns from trust funds
  11 Duty to carry out directions of donors
  12 Use of donations if specific directions not given by donor
  13 Donations to benefit persons outside British Columbia
  14 Donations to take effect in future
  15 General provisions relating to donations
  16 Appointment of trust companies
  17 Management of funds for other charitable organizations
  18 Court order directing transfer of trust property to the foundation
  19 Court order changing trust on which property is held
  20 Residents' advisory committees
  21 Officers, employees and expenses
  22 Bylaws
  23 Annual audit

Preamble

WHEREAS it is desirable to create a perpetual body to receive donations in trust for charitable purposes to the end that the returns arising from its assets and those donations are devoted perpetually to charitable purposes:

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1  In this Act:

"base amount" means, for a particular trust fund at a particular time, the dollar value of all contributions at the time those contributions were made to the trust fund before the particular time, other than

(a) contributions that were subsequently withdrawn from the trust fund, and

(b) contributions made under section 7 (4),

less any amounts that were added to the distributable amount of the trust fund under section 9 (6) before the particular time;

"board" means the board of the foundation under section 5;

"common trust fund" means a fund established under section 9 (1);

"Community Fund" means the fund established by the foundation under section 16 (1) of the original Act as enacted by the Vancouver Foundation Amendment Act, 1993;

"distributable amount" means, for a particular trust fund at a particular time, the sum of

(a) the amount by which the fair market value of the trust fund at the particular time exceeds the base amount of the trust fund at the particular time, and

(b) any portion of the reserve amount that the board adds to the distributable amount under section 9 (6);

"donation" includes a gift, bequest or devise;

"foundation" means the Vancouver Foundation continued under section 3;

"foundation endowment" means

(a) the Community Fund,

(b) the United Way of the Lower Mainland Endowment Fund, and

(c) any other donation to the foundation

(i)  on trust terms that expressly or impliedly create a trust, or

(ii)  on terms under which expressly or impliedly the foundation has the discretion to create a trust and does so;

"independent trust fund" means a fund established under section 9 (5);

"original Act" means the Vancouver Foundation Act, S.B.C. 1950, c. 94;

"property" means, in relation to a foundation endowment the assets of which have been invested in a trust fund, the foundation endowment's interest in the trust fund, but does not include the amount that is deemed to be income of the foundation endowment under section 10 (4), unless the income has been accumulated and added to the property of the foundation endowment under section 7 (4);

"reserve amount" means, for a particular trust fund at a particular time, 7% of the base amount for the trust fund determined as of December 31, 2008, less any amounts that were added to the distributable amount under section 9 (6) before the particular time;

"returns" means the distributable amount for a trust fund;

"trust fund" includes a common trust fund and an independent trust fund;

"United Way of the Lower Mainland Endowment Fund" means the fund designated as such by section 16 (4) of the original Act, as enacted by the Vancouver Foundation Amendment Act, 1993.

Act to be given liberal construction

2  This Act is to be construed liberally to the end that the courts of British Columbia may

(a) assist in making effective gifts for charitable purposes, and

(b) in case of any failure on the part of the foundation or those entrusted with the powers of appointing the board, or otherwise howsoever, do what may be necessary to carry out the true intent and purpose of this Act.

Vancouver Foundation continued

3  The Vancouver Foundation is continued as a corporation, without share capital, consisting of the members of the board of the foundation.

Objects of the foundation

4  The objects of the foundation, all of which are deemed to be charitable, are the following:

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

(b) to promote educational advancement and scientific or medical research for the increase of human knowledge and the alleviation of human suffering;

(c) to better underprivileged or delinquent persons;

(d) to promote recreational activities and the conservation of human, natural and heritage resources;

(e) to provide for any other charitable purposes that the board considers contribute to the mental, moral, cultural and physical improvement of the inhabitants of British Columbia.

Board of directors

5  (1) The board of directors for the foundation is to consist of 12 residents of British Columbia, being

(a) the Chief Justice of the Supreme Court or, if applicable, the person appointed by the Chief Justice under section 6 (1), and

(b) the persons who are directors under section 6 (2) or (5).

(2) No salary or reward or profit of any kind may be paid or given to any member of the board.

(3) A member of the board is not personally liable for loss or damage suffered by a person as a result of anything done or not done in good faith in acting or purporting to act on behalf of the foundation.

Appointment and replacement of board members

6  (1) The Chief Justice of the Supreme Court of British Columbia may appoint a judge of that court, or any other person, to hold office as a member of the board under section 5 (1) (a) in the place of the Chief Justice for a term the Chief Justice determines.

(2) When there is a vacancy at the end of the term of office for a director under section 5 (1) (b), the vacancy must be filled for the term of 4 years in the manner specified in subsection (3) for that position.

(3) For the purpose of filling a vacancy referred to in subsection (2), each successor to a director must be nominated or elected, as applicable, in accordance with the following, depending on which director under the original Act first held the position that has become vacant:

Director first holding position under the original Act: Vacancy to be filled by:
Robert Barnett MacKay......................................................................... a nominee of the Pacific Subsection of the Canadian Bankers Association
in the City of Vancouver;
Charles Thomas McHattie...................................................................... a nominee of the Vancouver Board of Trade;
Alexander Douglas Wilson...................................................................... a member of the Vancouver Bar Association nominated by the
Vancouver Bar Association;
Eric Vickers Chown.............................................................................. a nominee of the Canadian Institute of Chartered Life Underwriters and
Chartered Financial Consultants, Lower Mainland Chapter;
Gordon Farrell..................................................................................... a person elected by the other members of the board;
Whitford Julian Van Dusen..................................................................... a person elected by the other members of the board;
Alan Holmes Williamson......................................................................... a person elected by the other members of the board;
The past president of the Community Chest and Council of Greater
Vancouver first nominated under section 24 (3) of the original Act................
a nominee of the United Way of the Lower Mainland;
A person who was one of the 3 members of the board first elected
by other members under section 24 (4) of the original Act...........................
a person elected by the other members of the board.

(4) On the request in writing signed by a majority of the board, a member under section 5 (1) (b) may be required to resign as a member of the board.

(5) If a member under section 5 (1) (b) ceases to be a director before his or her term of office is completed, whether this is by reason of

(a) death,

(b) ceasing to be a resident of British Columbia,

(c) resignation, or

(d) a request under subsection (4),

a new member must be appointed in place of the member, in the same manner as that member was appointed and for the remainder of the term of the member being replaced.

(6) At the end of his or her term of office, a member of the board is eligible for re-election.

Powers in relation to property

7  (1) The foundation has the following powers:

(a) to receive donations of every kind and description;

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

(c) to hold, control, administer and deal with property of every kind and description, whether real or personal and wherever situated;

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

(e) to pass on and entrust to one or more trust companies the custody of all or any portion of the property received or held by the foundation, in the manner and portions that the board considers proper, and to enter into agreements with trust companies in relation to this;

(f) to lease any lands held by the foundation;

(g) to pay the expenses of administering the foundation and the properties received or held by the foundation, and to charge these expenses against the income or the property of each foundation endowment.

(2) Subject to any express direction to the contrary in any Act or in the terms of a gift, the powers conferred on the board may be exercised in respect of all funds held by the foundation, whether the funds were received by the foundation before or after this section came into force.

(3) All transfers, assignments or conveyances of property by the foundation must be executed by and on behalf of the foundation in the manner established by bylaw of the foundation, and must also be executed by the trustee of the property to be transferred, assigned or conveyed.

(4) Despite section 10 (4) or the terms of a foundation endowment that require that income of the foundation endowment must be disbursed for charitable objects, the board may

(a) accumulate the income, or any amount of the income, and add it to the property of the foundation endowment, and

(b) reinvest the accumulated income as a contribution to a trust fund.

(5) The powers conferred on the board under subsection (4) of this section do not apply to a foundation endowment if the terms of the endowment require that income must be disbursed to a particular organization, unless the organization consents to the exercise of those powers.

Specific powers in relation to investments

8  (1) Subject to any specific direction by a donor or the Supreme Court,

(a) the foundation may invest its funds and other property, and the funds and property entrusted to or vested in it, and

(b) the board may direct the investment of any funds or other property that are entrusted to a trust company,

in the manner that the board considers fit and prudent as if the foundation were a person of full age and capacity beneficially entitled to the property.

(2) Subject to any express direction to the contrary in an Act or in the terms of a gift, the board may delegate its powers of investment, whether the powers arise under this or any other Act, at law or under the terms of a gift, to any person or body to any extent, for any period, on any terms, including terms as to the payment of the delegate, and in the manner that the board considers fit.

(3) As limits on the authority under subsection (2), the board

(a) is subject to the obligations to which it would normally be subject in selecting and supervising delegates, and

(b) must not in any contract with a delegate relieve the delegate from the obligation to exercise the degree of care that the delegate would be required to exercise at law.

(4) For the purposes of subsection (3) (a), a review by the board of the performance of a delegate conducted at least twice in each fiscal year is deemed to satisfy the board's obligation to supervise unless the contrary is proven.

Establishment of trust funds

9  (1) Despite anything contained in another provision of this Act but subject to subsection (4), the board may establish one or more common trust funds in which property of its foundation endowments is combined for the purposes of facilitating investment or for such other purposes as the board considers advisable.

(2) The board may

(a) determine which property is to be included in a common trust fund and which property is to be withdrawn from a common trust fund,

(b) determine the method of valuation of investments in common trust funds and the date or dates on which the valuation may be made, and

(c) make regulations concerning the operation of common trust funds.

(3) The board may invest the property that is held in a common trust fund in any investments that the board considers advisable and may do so

(a) in such a way as to enhance the value of the trust fund, and

(b) without regard to the fact that the terms of foundation endowments having property in the trust fund provide for distribution of income only.

(4) An express direction in writing by a donor made on or before the date on which a donation is made, that the property included in the donation must not be included in a common trust fund, is binding on the foundation.

(5) The property of a foundation endowment that is not combined in a common trust fund must be held in an independent trust fund established by the board for the purposes of investment.

(6) The board may add a portion of the reserve amount to the distributable amount of a trust fund in an amount that the board from time to time determines, until the reserve amount has been exhausted.

Distribution of returns from trust funds

10  (1) The board may from time to time, but not less often than once in each fiscal year, distribute the portion of the returns that it considers proper from each of its trust funds to its foundation endowments.

(2) In exercising its powers under subsection (1), the board must develop retention and distribution policies, and in doing this must take into account the following:

(a) the foundation's need to maintain a reasonable balance between the base amount of its trust funds and the amounts to be distributed;

(b) the estimated total return;

(c) existing and anticipated requirements;

(d) the short and long term needs of the foundation;

(e) the foundation's disbursement quota requirements under any applicable taxation legislation;

(f) any other factors the board considers relevant.

(3) If a trust fund includes property of more than one foundation endowment, the board must make regulations to provide for the making of appropriate adjustments in the value of the interests of foundation endowments in the trust fund when the amounts distributed to all foundation endowments are not in the same proportion to the value of their interests in the trust fund.

(4) The amount distributed under subsection (1) is deemed to be the income of the foundation endowments to which it is distributed and must be used in accordance with the terms of those foundation endowments.

(5) Subject to subsections (6) and (7), this section applies in respect of all donations to the foundation and all property held by the foundation, whether the donations were made or the property was received before or after this section came into force.

(6) This section does not apply if the terms of a particular donation or endowment expressly provide for a different distribution than that provided for in this section.

(7) The terms of a particular donation or endowment must not be construed as providing for a different distribution solely because

(a) the donation creating the foundation endowment is designated expressly or by implication as an endowment, or

(b) the donation or endowment contains a direction or an authorization to use only "income" or "interest" or "dividends", or to "preserve capital", or any term or terms of similar import.

Duty to carry out directions of donors

11  (1) For the purpose of giving effect to the objects of the foundation, the board must carry out the directions of donors if definite directions in writing are given.

(2) If a donor is deceased or is otherwise not available to clarify directions given by the donor with respect to the use of a donation, the board may, in its sole discretion in cases of doubt, deal with the property.

(3) Subject to subsection (4), a decision of the board under subsection (2) is final and binding on all persons affected.

(4) A person affected by a decision under subsection (2) may, within 60 days after the decision was made, apply to the Supreme Court and the court may make an order it considers reasonable in the circumstances.

Use of donations if specific directions not given by donor

12  (1) In the absence of any direction by the donor, all contributions are to be invested and the net income devoted in perpetuity for charitable purposes as provided in this Act and subject to this section.

(2) Effective the beginning of the 1993 fiscal year of the foundation, all gifts received by the foundation for which the donor has not given specific directions in writing must be included in the Community Fund.

(3) For the purposes of subsection (2),

(a) a gift is deemed to be given without specific directions if it is a gift made by the donor to the foundation

(i)  without any direction, qualification or explanation designating the application of the gift, or

(ii)  without any description of intended purpose or use of the gift, and

(b) a gift is deemed to be given with specific directions if it is a gift made by the donor to the foundation for use by the foundation in its discretion.

(4) The effective date of receipt of a gift referred to in subsection (2) is as follows:

(a) in the case of a testamentary gift not postponed by any prior interest, the date of death of the donor;

(b) in the case of a testamentary gift postponed by one or more prior interests, the date of the termination of the last of the prior interests;

(c) in other cases, the date of receipt of the funds of the gift.

(5) As an exception to subsection (2), the following percentages of the gifts referred to in that subsection must be added to the United Way of the Lower Mainland Endowment Fund, with the remainder to be added to the Community Fund:

(a) for gifts received in the 1993 fiscal year of the foundation, 40%;

(b) for gifts received in the 1994 fiscal year of the foundation, 30%;

(c) for gifts received in the 1995 fiscal year of the foundation, 20%;

(d) for gifts received in the 1996 fiscal year of the foundation, 10%.

(6) Despite subsection (4), for a gift referred to in subsection (2) that was made by a donor who ordinarily resided outside the Lower Mainland at the time the gift was received, the board may in its discretion exclude the gift from the gifts subject to apportionment under subsection (5) and instead include the entire gift in the Community Fund.

(7) Income from a gift included in the Community Fund under subsection (6) must be paid in the discretion of the board to any charitable object in the area in which the donor ordinarily resided at the time the gift was received.

(8) For the purposes of subsection (6), the Lower Mainland is deemed to be the geographical area within boundaries commencing at the southwest corner of the Municipality of Delta, north along the eastern bank of Howe Sound to include the Village of Lions Bay and the Town of Squamish, northeast to include the Village of Whistler, east along the northshore including West Vancouver and the District and City of North Vancouver, along the Fraser Valley to the northeastern boundary of the Municipality of Maple Ridge, south along the Langley-Matsqui border to the International Boundary and west along the International Boundary to the point of commencement.

(9) In each fiscal year of the foundation,

(a) the income of the Community Fund and any accretions to it must be paid at the discretion of the board, and

(b) the income from the United Way of the Lower Mainland Endowment Fund and any accretions to it, as calculated by the board in accordance with this Act, must be paid to the United Way of the Lower Mainland or to its successor.

(10) All powers, authority and discretion that are exercisable by the board under this section may be exercised in the full and absolute discretion of the board, or by a majority of the board present at a duly constituted meeting of the board, and the decision of the board or the majority is final and conclusive.

Donations to benefit persons outside British Columbia

13  For property donated to the foundation, if the donor

(a) wishes that a part of the income derivable from the property be distributed for charitable purposes for the benefit of citizens of other places than British Columbia, and

(b) indicates this in the instrument creating the trust,

the board may accept and exercise the trust in respect of the distribution of that part as fully as in respect of the remainder of the property.

Donations to take effect in future

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

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

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

General provisions relating to donations

15  (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 does not apply to donations of the character indicated in this Act.

Appointment of trust companies

16  (1) As soon as practicable after a donation has been received, the foundation must appoint one or more trust companies to

(a) have custody of the property included in the donation, or of the portion of the property allotted to each of the trust companies by the board, and

(b) act as trustee or trustees of that property for the foundation under the direction and control of the board.

(2) The foundation may at any time, by resolution passed by a majority of the board, revoke the appointment of a trust company as a trustee and appoint another trust company as a new trustee.

(3) A trust company must not be appointed by the foundation unless the trust company is authorized to act as an executor and administrator in British Columbia.

(4) A trust company appointed as trustee for the foundation must

(a) have custody of all property entrusted to it by the foundation,

(b) make all investments, reinvestments, conversions, sales or dispositions of the property as instructed in writing by the board,

(c) under the direction of the board, give effect to and observe all directions given to it by the board with regard to the property, and

(d) distribute from the moneys in its possession the sums in the manner that the board by resolution directs.

(5) A trust company is not accountable for any act or omission if the act or omission was authorized in writing by the board.

Management of funds for other charitable organizations

17  If a charitable organization is

(a) established, or authorized to operate, under the law of British Columbia, and

(b) registered under the Income Tax Act (Canada),

the organization may entrust funds to the foundation and the foundation may, on terms agreeable to the foundation and the organization, manage and invest the funds.

Court order directing transfer of trust property to the foundation

18  (1) A person holding property in trust may, on notice to the foundation, apply to the Supreme Court for an order under this section if

(a) the property is held in trust for

(i)  a charitable purpose,

(ii)  the benefit of any institution or class or group of persons, or

(iii)  any purpose of a nature similar to the objects for which the income of the foundation may be used under this Act, and

(b) either

(i)  because the object of the trust has ceased to exist or the trust has become substantially incapable of performance, the trust cannot be further administered, or

(ii)  the trustee of the property wishes to be discharged from the administration of the trust.

(2) On an application under this section, the Supreme Court may make an order directing the trustee to assign, set over, transfer and convey the trust property to the foundation, to be used by the foundation

(a) for the charitable purpose or purposes specified in the order, or

(b) if no purpose is specified in the order, in the same manner and for the same purposes as other donations that may be made to the foundation under this Act.

(3) On complying with an order under this section, the trustee is 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

19  (1) The foundation may apply to the Supreme Court for an order under this section in relation to property of which it is trustee, if the trust cannot be administered because the object of the trust has ceased to exist or the trust has become substantially incapable of performance.

(2) On an application under this section, the Supreme Court may make an order directing the trust property to be used by the foundation

(a) for the charitable purpose or purposes specified in the order, or

(b) if no purpose is specified in the order, in the same manner and for the same purposes as other donations that may be made to the foundation under this Act.

Residents' advisory committees

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

(2) No salary or reward or profit of any kind may be paid or given to any member of an advisory committee.

Officers, employees and expenses

21  (1) The board may

(a) appoint officers and engage employees, at the salaries or for the remuneration that the board considers proper and necessary, and

(b) incur expenditure incidental to the conduct of the affairs of the foundation and the carrying out of its objects that the board considers necessary.

(2) No salaries or other expenditures may be paid unless payment is approved by the board.

Bylaws

22  The board may make bylaws regulating the carrying out of the duties that are assigned by this Act to the foundation or the board, including bylaws establishing the following:

(a) the fiscal year of the foundation;

(b) the times of distribution;

(c) the times of audits and their publication;

(d) the appointment of a chair;

(e) any other matters that are considered advisable for the convenient and efficient carrying out of the objects of this Act.

Annual audit

23  (1) The board must

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

(b) make copies of the auditor's report available to the general public on request.

(2) A trust company appointed by the board under this Act must give full information and permit the necessary inspection to enable the audit to be made.