Act BEFORE revised under RS1996-440 effective September 30, 2000 (BC Reg 332/00).
Vancouver Foundation Act
[SBC 1950] CHAPTER 94
Assented to 30th March, 1950.
Preamble
WHEREAS The Vancouver Foundation was incorporated on the fourteenth day of September, 1943, under the "Societies Act":
AND WHEREAS it is desirable to create a perpetual body to acquire all the assets of The Vancouver Foundation aforesaid, and to receive donations in trust for charitable purposes to the end that the net annual income arising from such assets and donations shall be devoted perpetually to charitable purposes:
THEREFORE, HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: —
Interpretation
1.1 In this Act:
"common trust fund" means a fund established under section 7.1 (1);
"Community Chest and Council of Greater Vancouver" includes the United Way of the Lower Mainland or its successor;
"Endowment" means
(b) the United Way of the Lower Mainland Endowment Fund, and
(c) any other donation, devise or bequest 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;
"Fund" includes a common trust fund and an independent trust fund;
"independent trust fund" means a fund established under section 7.1 (5);
"net appreciation" means the difference between
(a) the initial dollar value of a Fund and the dollar value of each subsequent contribution to it, and
(b) the fair market value, inclusive of income, of the Fund from time to time;
"returns" means net appreciation arising before or after this section comes into force.
1998-48-1.
Creation of Foundation
Creation of Vancouver Foundation
2 There is hereby created a corporation which shall be a body politic and corporate, without share capital, under the name of the "Vancouver Foundation."
1950-94-2.
Members of Foundation
3 The corporation (hereinafter called "the Foundation") shall be composed of the members for the time being of the Board of Directors (hereinafter called "the Board").
1950-94-3.
Transfer of Property to Foundation
Assets of The Vancouver Foundation transferred to the Foundation
4 All the property, real and personal, and whether in possession or in action, including the benefits under any agreement whatsoever of The Vancouver Foundation incorporated under the "Societies Act" are hereby transferred to and vested in the Foundation, and all the debts and obligations of any kind whatsoever of The Vancouver Foundation shall be paid and discharged by the Foundation.
1950-94-4.
Dissolution of The Vancouver Foundation
5 Notwithstanding anything in the "Societies Act" to the contrary, The Vancouver Foundation is dissolved.
1950-94-5.
Objects
Objects
6 The objects of the Foundation, all of which are deemed to be charitable, are to provide care for needy men, women, and children, and in particular the sick, aged, destitute, and helpless; to promote educational advancement and scientific or medical research for the increase of human knowledge and the alleviation of human suffering; to better underprivileged or delinquent persons; to promote recreational activities and the conservation of human, natural and heritage resources; and to provide for such other charitable purposes as may in the discretion of the Board appear to contribute to the mental, moral, cultural and physical improvement of the inhabitants of the Province.
1950-94-6; 1953-56-2; 1980-1-29.
Powers
Powers
7 (1) The Foundation is empowered:—
(a) To receive bequests, devises, and donations of every kind and description whatsoever, and hold, control, administer, and deal with property of every kind and description, whether real or personal and wheresoever situate, and to refuse to accept any bequest, devise, and donation in the sole discretion of the Board:
(b) If not in contravention of an express term of the bequest, devise, or donation under which it is received, to convert any property at any time or from time to time received or held by the Foundation into any other form, and for such purpose to sell, dispose of, assign, transfer, lease, or exchange the same:
(c) To pass on and entrust to one or more trust companies the custody of all or any portion of the property at any time or from time to time received or held by the Foundation, in such manner and in such portions as the Board may deem proper, and enter into agreements with such companies with regard thereto:
(d) To lease any lands at any time held by the Foundation:
(e) To pay the expenses of administering the Foundation and the properties received or held by the Foundation, and to charge these expenses against the returns arising from each Fund in the proportion that the returns arising from each Fund bears to the total returns of the Foundation.
(2) Subject to any specific direction by a donor or the Supreme Court or a Judge thereof, the Foundation may invest its funds and other property, and the funds and property entrusted to or vested in it, and the Board may direct the investment of any funds or other property which are entrusted to a trust company, in such manner as to the Board shall seem fit and prudent as if the Foundation were a person of full age and capacity beneficially entitled thereto.
(3) 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 arising under this or any other Act, at law or under the terms of a gift, to any person or body (the "delegate") to any extent for any period on any terms, including terms as to the payment of the delegate, and in such manner as it thinks fit.
(4) As limits on the authority under subsection (3), the Board
(a) is subject to the obligations to which it would normally be subject in selecting and supervising delegates and, for these purposes, 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, and
(b) shall 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.
(5) Subject to any express direction to the contrary in any Act or terms of a gift, the powers conferred on the Board may be exercised in respect of all funds held from time to time by the Foundation whether the funds were received by the Foundation before or after this section came into force.
1950-94-7; 1953-56-3; 1968-53-25; 1998-48-2.
Establishment of trust funds
7.1 (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 Endowments is combined for the purposes of facilitating investment or for such other purposes as the Board considers advisable.
(2) The Board may from time to time
(a) determine which property is to be included in or 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 returns of the Fund, and
(b) without regard to the fact that the terms of Endowments having property in the 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, bequest or devise is made, that the property included in the donation, bequest or devise shall not be included in a common trust fund, is binding on the Foundation.
(5) The property of an Endowment that is not combined in a common trust fund shall be held in an independent trust fund established by the Board for the purposes of investment.
1998-48-3.
Distribution of returns
7.2 (1) The Board may from time to time, but not less often than once in each fiscal year, distribute the portion of the returns from each of its Funds to its Endowments that it considers proper.
(2) In exercising its powers under subsection (1), the Board shall develop retention and distribution policies, and in doing this shall take into account
(a) the Foundation's need to maintain a reasonable balance between the capital value of its Funds and the amounts to be distributed from time to time,
(b) the estimated total return on investments,
(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, and
(f) any other factors the Board considers relevant.
(3) If a Fund includes property of more than one Endowment, the Board shall make regulations to provide for the making of appropriate adjustments in the value of the interests of Endowments in the Fund when the amounts distributed to all Endowments are not in the same proportion to the value of their interests in the Fund.
(4) The amount distributed under subsection (1) is deemed to be the income of the Endowments to which it is distributed and shall be used in accordance with the terms of those Endowments.
(5) Subject to subsections (6) and (7), this section applies in respect of all donations, devises and bequests to the Foundation, and all property held from time to time by the Foundation, whether the donations, devises and bequests 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, endowment, devise or bequest expressly provide for a different distribution than that provided for in the section.
(7) The terms of a particular donation, endowment, devise or bequest shall not be construed as providing for a different distribution solely because
(a) the donation, devise or bequest creating the Endowment is designated expressly or by implication as an endowment, or
(b) the donation, endowment, devise or bequest 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.
1998-48-3.
Power to Court to direct transfer to the Foundation of certain trust properties
8 (1) Where any person holds any property in trust for any charitable purpose or for the benefit of any institution or class or group of persons, or for any purpose of a nature similar to the objects for which the income of the Foundation may be used under this Act, and where by reason of the object of the trust having ceased to exist or the trust having become substantially incapable of performance, the trust cannot be further administered, or where the trustee of any such property wishes to be discharged from the administration of such trust, then such person as trustee as aforesaid may, upon notice to the Foundation, apply to the Supreme Court or a Judge thereof for an order directing him to assign, set over, transfer, and convey such property to the Foundation to be used for such charitable purpose or purposes as the Court may stipulate by its order, or otherwise, to be used by the Foundation in the same manner and for the same purposes as other donations that may be made to the Foundation under this Act; and the said Court or a Judge thereof is empowered to make an order to assign, set over, transfer, and convey such property to the Foundation as may then appear proper, and any trustee upon complying with the order shall thereupon be relieved and discharged of all further responsibility in respect of the property so handed over pursuant to the order.
Power to Court to change trusts upon which properties are held
(2) Where by reason of the object of the trust having ceased to exist or the trust having become substantially incapable of performance, the trust cannot be administered, the Foundation, being the trustee, may apply to the Supreme Court or a Judge thereof for an order directing the property held upon such trusts to be used for such charitable purpose or purposes as the Court may stipulate by its order, or otherwise, to be used by the Foundation in the same manner and for the same purposes as other donations that may be made to the Foundation under this Act.
1950-94-8.
Appointment by Foundation of trust companies
9 The Foundation, as soon as practicable after a donation has been received, shall appoint one or more trust companies to have custody of the property included in the donation, or such portion or portions thereof as may be allotted to each of such companies by the Board, and to act as trustee or trustees thereof for the Foundation under the direction and control of the Board.
1950-94-9.
Power to revoke appointment of a trust company
11 The Foundation may at any time, on a resolution passed by a majority of the Board, revoke the appointment of any trust company as a trustee and appoint another trust company as a new trustee.
1950-94-11.
No trust company to be appointed unless authorized to act as executor, etc.
12 No trust company shall be appointed by the Foundation unless it is authorized to act as an executor and administrator in the Province.
1950-94-12.
Duties of trust companies appointed by the Foundation
13 (1) Each trust company during its continuance in office as trustee for the Foundation shall:—
(a) Have custody of all property entrusted to it by the Foundation, and shall make all investments, reinvestments, conversions, sales, or dispositions thereof as it may from time to time be instructed in writing by the Board:
(b) Under the direction of the Board, give effect to and observe all directions given to it by the Board with regard to any property entrusted to it by the Foundation:
(c) Distribute from the moneys in its possession such sums in such manner as the Board at any time or from time to time by resolution directs:
(2) A trust company shall not be accountable for any act or omission if the act or omission was authorized in writing by the Board.
1950-94-13; 1952-18-2; 1953-56-5; 1967-49-15.
Residents' advisory committees
14.1 The Board may establish voluntary advisory committees composed of residents of the Province to assist the Board in the conduct of the affairs of the Foundation.
1980-1-31.
Duty to carry out directions of donors
15 For the purpose of effectuating its objects, the Board shall carry out the directions of donors where definite directions in writing are given.
1950-94-15.
If definite directions not given by donor
16 (1) Subject to subsection (5), 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 shall be included in the Community Fund established by the Foundation.
(2) In each fiscal year of the Foundation, the income of the Community Fund referred to in subsection (1) and any accretions to it shall be paid at the discretion of the Board.
(3) For the purposes of subsection (1),
(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) Effective the end of the 1992 fiscal year of the Foundation, the general fund established under section 16 (1) of this Act, as it read before this section came into force, is designated as the United Way of the Lower Mainland Endowment Fund, and the income from this fund and any accretions to it, as calculated by the Board in accordance with this Act, shall in each fiscal year of the Foundation be paid to the United Way of the Lower Mainland or to its successor.
(5) Subject to subsection (7), the following percentages of the gifts referred to in subsection (1) shall be added to the fund referred to in subsection (4), with the remainder to be added to the Community Fund referred to in subsection (1):
(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) The effective date of receipt of a gift referred to in subsection (1) 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 interest, the date of the termination of the last of such interests;
(c) in other cases, the date of receipt of the funds of the gift.
(7) For a gift referred to in subsection (1) 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 referred to in subsection (1), in which case the income from the gift shall 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 (7), 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) 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.
1993-26-1.
Net income devoted to charity in perpetuity
17 In the absence of any direction by the donor, it shall be deemed that all contributions are to be invested and the net income devoted in perpetuity for charitable purposes as provided in this Act and subject to the provisions of sections 16 and 18.
1950-94-17.
Ambiguous directions
18.1 (1) Where a donor is deceased or otherwise not available to clarify directions given by him with respect to the use of his bequest, devise or donation, the Board may, in its sole discretion in cases of doubt, deal with the property and, subject to subsection (2), its decision is final and binding on all persons affected.
(2) A person affected by a decision made under this section 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.
1980-1-33.
Part of income for the benefit of places outside British Columbia
19 Where property has been donated to the Foundation and the donor is desirous that a part of the income derivable therefrom shall be distributed for charitable purposes for the benefit of citizens of other places than the Province and so indicates in the instrument creating the trust, the Board may accept and exercise the trust in respect of the distribution of such part as fully and effectually as in respect of the remainder.
1950-94-19; 1980-1-34; 1998-48-5.
Donations to take effect in future
20 Where a donation is made to the Foundation in trust of any property to take effect in future, the Board is empowered to accept and exercise any powers of appointment, settlement, or distribution with respect to the income in whole or in part derivable from such property in the interim, and also power to nominate executors and trustees in the manner provided in the instrument creating the trust.
1950-94-20.
Management of other funds
20.1 (1) A charitable organization
(a) established under the law of the Province, or
(b) authorized to operate under the law of the Province
and registered under the Income Tax Act (Canada) may entrust funds to the Foundation and the Foundation may, on terms agreeable to both of them, manage and invest the funds.
(2) Subsection (1) is retroactive to the extent necessary to give it full force and effect on, from and after March 30, 1950.
1980-1-35.
Members of Board ex officio
22 (1) Until the thirty-first day of March, 1958, the Mayor of the City of Vancouver for the time being shall be a member by virtue of his office, and the Chairman of the Community Chest and Council of Greater Vancouver shall be a member by virtue of his office.
(2) On the first day of April, 1958, the Chief Justice of the Supreme Court of British Columbia shall become and shall thereafter be, ex officio, a member of the Board.
(3) The Chief Justice of the Supreme Court of British Columbia may appoint a Judge of the Supreme Court, or any other person, to hold office as a member of the Board in the place of the Chief Justice for a term the Chief Justice determines.
1950-94-22; 1958-73-3; 1998-48-6.
Remaining members of Board
23 The following persons and their successors who shall be chosen as prescribed in section 24 shall be members of the Board, namely: Whitford Julian Van Dusen and Alexander Douglas Wilson, both of whom shall hold office until the thirty-first day of December, 1950; Eric Vickers Chown, who shall hold office until the thirty-first day of December, 1951; Robert Barnett MacKay and Alan Holmes Williamson, both of whom shall hold office until the thirty-first day of December, 1952; and Gordon Farrell and Charles Thomas McHattie, both of whom shall hold office until the thirty-first day of December, 1953.
1950-94-23.
Appointment of successors to persons named in s. 23
24 (1) Upon any of the persons mentioned in section 23 ceasing to be a director, his vacancy and thereafter the vacancy of each person succeeding him shall be filled for the term of four years as follows: In the case of Robert Barnett MacKay, by a nominee of the Pacific Subsection of the Canadian Bankers Association in the City of Vancouver; in the case of Charles Thomas McHattie, by a nominee of the Vancouver Board of Trade; in the case of Alexander Douglas Wilson, a member of the Law Society of the Province of British Columbia nominated by the Chief Justice of the Supreme Court of British Columbia; in the case of Eric Vickers Chown, a nominee of the Canadian Institute of Chartered Life Underwriters and Chartered Financial Consultants, Lower Mainland Chapter; and in the case of Gordon Farrell, Whitford Julian Van Dusen, and Alan Holmes Williamson, by such persons as are from time to time elected by the other members of the Board.
(2) When next after the thirty-first day of December, 1957, the term of office of the member of the Law Society of British Columbia as a member of the Board expires, his vacancy and thereafter the vacancy of each person succeeding him shall be filled by a member of the Vancouver Bar Association nominated by the Vancouver Bar Association.
(3) On the first day of April, 1958, a past president of the Community Chest of Greater Vancouver nominated by the Community Chest and Council of Greater Vancouver shall become a member of the Board for a term of three years and nine months; and upon his ceasing to be a member of the Board, his vacancy and thereafter the vacancy of each person succeeding him shall be filled for a term of four years by a person nominated by the Community Chest and Council of Greater Vancouver.
(4) On the coming into force of this subsection the members of the Board shall elect 3 additional members to serve as directors for a term of 4 years and any vacancy occurring among those additional members shall be filled for a term of 4 years by persons elected by the Board.
1950-94-24; 1958-73-4; 1980-1-37; 1998-48-7.
Term of office
25 Except as provided in subsection (3) of section 24, the persons nominated and appointed for membership on the Board pursuant to section 24 shall remain members of the Board for the term of four years unless they have been elected to fill a vacancy arising under section 28, in which case the term of office will expire on the date upon which the predecessor's term would ordinarily have ended.
1950-94-25; 1958-73-5.
Eligibility of members for re-election
26 Any member of the Board shall, on the expiration of his term of office, be eligible for re-election.
1950-94-26.
Resignation of members on request of majority of Board
27 Any member of the Board other than the Mayor of the City of Vancouver or the Chairman of the Community Chest and Council of Greater Vancouver or the Chief Justice of the Supreme Court of British Columbia or his nominee may, on the request in writing signed by a majority of the Board, be required to resign as a member of the Board.
1950-94-27; 1958-73-6.
Vacancy by reason of death, etc.
28 Upon the expiration of the term of office of any member of the Board other than the Mayor of the City of Vancouver and the Chairman of the Community Chest and Council of Greater Vancouver or the Chief Justice of the Supreme Court of British Columbia or his nominee, whether by death or by change of residence from the Province or by resignation or by virtue of a request pursuant to section 27, a new member shall be appointed in place of the member whose term of office has expired in the same manner as the member was appointed whose membership is to be filled and for the unexpired term of such member.
1950-94-28; 1958-73-7; 1980-1-38.
Appointment of officers and employees
29 (1) The Board may appoint such officers and engage such employees, at such salaries or for such remuneration as the Board may deem proper and necessary, and may incur such expenditure incidental to the conduct of the affairs of the Foundation and the carrying-out of its objects as to the Board appears requisite.
(2) No salaries or other expenditures shall be paid unless payment is approved by the Board.
1950-94-29; 1958-73-8; 1980-1-39; 1998-48-8.
No remuneration for members of Board
30 No salary or reward or profit of any kind shall be paid or given to any member of the Board or any member of an advisory committee.
1950-94-30; 1980-1-40.
Protection of the members of the board
30.1 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 Vancouver Foundation.
1998-48-9.
By-laws
31 The Board may pass by-laws regulating the carrying-out of such duties as are by this Act assigned to the Foundation or the Board, including the fixing of the fiscal year, the time or times of distribution and audit and of the publication thereof, the appointment of a chairman, and such other matters as may be deemed advisable for the convenient and efficient carrying-out of the objects of this Act.
1950-94-31.
Audit
32 (1) The Board shall cause an audit of the financial statements of the Foundation to be made at least once in every fiscal year by an independent auditor and shall make copies of the auditor's report available to the general public on request.
(2) It shall be the duty of any trust company appointed by the Board under this Act to give full information and permit the necessary inspection to enable such audit to be made.
1950-94-32; 1998-48-10.
Execution of transfers, etc.
33 All transfers, assignments, or conveyances of property by the Foundation shall be executed by and on behalf of the Foundation in such manner as the Foundation may from time to time by by-law prescribe, and shall further be executed by the trustee for the time being of the property to be so transferred, assigned, or conveyed.
1950-94-33.
General Provisions
Provisions relating to donations
34 Any form of words shall be 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.
1950-94-34.
Liberal construction
35 This Act is to be construed liberally to the end that the Courts of British Columbia may assist in making effective gifts for charitable purposes, and may, 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.
1950-94-35.