Bylaws

A By-law relating generally to the regulation of the business and affairs of the Donovan Martin Foundation.

BE IT AND IT IS HEREBY ENACTED as a By-law of the Donovan Martin Foundation as follows:

INTERPRETATION

In this By-law:
1. “Board” means the Board of Directors of the Foundation;
2. “By-laws” means any by-laws of the Foundation that may be developed and implemented by the Board from time to time;
3. “Committee” means any ad hoc, advisory, or standing committee established by the Board from time to time;
4. “Foundation” means the Donovan Martin Foundation
5. “Director” means a member of the Board of the Foundation
6. “Ex-Officio” means a person who has been appointed to provide the Board or a Committee with operational or technical expertise. The Ex-Officio member is a non-voting member of the Board or Committee;
7. “Officer” means the President and Chief Executive Officer, the Chief Financial Officer, an Executive Vice-President or Vice-President, the Secretary, and the Treasurer;
The headings used in this By-law are inserted for reference purposes only and shall not affect the construction or interpretation of this By-law.
In this By-law, where the context requires, the singular includes the plural, the plural includes the singular and the word “person” includes individuals, Foundations, partnerships, or any number or aggregate of persons.

REGISTERED OFFICE

The Registered Office of the Foundation is 107 Carsdale Drive, Winnipeg, Manitoba, R2V 4W6 or such other location as the Board may decide.

Board of Directors

Composition: The Board shall consist of no less than two (2) and no more than ten (10) individuals appointed by the founder from time to time.
Remuneration and Reimbursement: The Foundation shall remunerate and reimburse Directors in accordance with the terms or directives established by the Founder.
Term of Office: The term of office of a Director shall be determined by the Founder and such additional period thereafter until a successor is appointed or the appointment is revoked.
Filling Vacancy: Upon the occurrence of a vacancy on the Board for any reason, the Board shall notify the Founder and President & CEO. The Founder may appoint a new Director to fill the vacancy. The Board may make recommendations respecting the appropriate skill sets and individuals to fill the vacancy. A vacancy shall not affect the ability of the remaining Directors to manage the business and affairs of the Foundation.
Vacation of Office: The office of a Director shall be automatically vacated if a Director:
1. resigns their office, and any resignation of a Director shall be effective at the time it is sent in writing to the Foundation or at the time specified in the resignation, whichever is later;
2. is judged by a court of competent jurisdiction to be a person incapable of managing their affairs;
3. dies; or
4. their appointment to the Board is revoked or terminated by the Founder.
The Board may recommend to the Founder that a Director be removed from the Board where such Director has failed to observe or abide by the By-laws of the Foundation, the policies established by the Foundation, or is not carrying out their responsibilities as a Director.
Responsibilities: The Board is responsible to the Foundation and shall:
1. In accordance with the laws of the Province of Manitoba, in exercising their powers and discharging their duties:
  1. act honestly and in good faith with a view to the best interests of the Foundation;
  2. exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances;
  3. exercise the powers of the Foundation directly or indirectly through the employees and agents of the Foundation;
  4. direct the management of the business and affairs of the Foundation;
  5. ensure that the Foundation complies with the Foundation’s mandate and the laws of the Province of Manitoba;
  6. attend all meetings of the Board, and Committees to which the Director is a member, except where the Director has advised in advance the Chair of the Board or Committee, as applicable, or the Vice-Chair of the Board or Committee, as applicable, in the absence of the Chair.
2. Fulfill the expectations of good governance as may be established from time to time by the Foundation or the Founder;
3. Comply with the Foundation’s Conflict of Interest policies and the Conflict of Interest Guidelines for Directors of Corporations or similar guidelines as enacted or amended from time to time. Directors shall disclose in writing or request to have entered into the minutes of any meeting the nature and extent of any interest in any party, material contract, or proposed material contract with the Foundation at the first meeting where the matter is being considered, or the first meeting thereafter where the Director subsequently became interested;
4. Contribute to a forum of experienced individuals offering a variety of perspectives on major challenges and opportunities, while supporting and representing the Foundation’s sole interests; and
5. Perform any other specific responsibilities and fulfill any other specific expectations as determined by the Board.

COMMITTEES OF THE BOARD

The Board may, by resolution, establish, empower, and terminate ad hoc, advisory and standing committees of the Board, including their terms of reference, appointment of the Chair, and membership, as the Board may, from time to time, deem appropriate.
Meetings of all committees of the Board shall be held in the absence of the public unless otherwise specified by the Board or applicable legislation.

MEETINGS OF THE BOARD

Regular Meetings: Meetings shall be held at the call of the Chair at such times and places as the Chair deems appropriate, or at the call of a majority of the Directors, on not less than ten (10) days’ notice. Meetings shall be held at least once per fiscal year.
Notice: Subject to section 20, the Board Chair shall ensure that notice of the time and place of any regular meeting and the agenda for such meeting are provided to the Directors no less than five (5) days, where reasonably possible, prior to the meeting in the manner specified in this By-law.
Special Meetings: The Chair may call special meetings of the Board at any time where they consider it necessary or at the request of a majority of Directors to transact business in between regular meetings of the Board. Where a special meeting is called, the Chair shall ensure that notice of the time and place of any special meeting, the agenda for such meeting, and all necessary resource material are provided to the Board members not less than seventy-two (72) hours, where reasonably possible, prior to the meeting.
Order of Business at Special Meetings: Except as provided in this section, the following order of business shall be observed at all special meetings:
1. reading of the notice of meeting;
2. establishment of quorum;
3. transaction of business; and
4. adjournment.
Where all the directors are present at a special meeting and unanimously agree, business other than the special business included in the notice for such meeting may be discussed and transacted.
Notice of Meetings: The notice of regular meetings and special meetings to be provided to Directors shall specify any proposal to:
1. submit to the Founder any question or matter requiring the approval of the Founder;
2. approve any annual financial statements; or
3. adopt, amend, or repeal By-laws.
Notice of a meeting shall not be necessary where:
1. all Directors entitled to vote at the meeting are present in person and approve of the transaction of business considered at the meeting; or
2. all Directors entitled to vote at such meeting who are not present waive in writing, either before or after the meeting, notice of the meeting and consent in writing to the business transacted at such meeting. Such waiver and consent shall be attached to the minutes of the meeting; or
3. the meeting is a reconvening of an adjourned meeting and the time and the place of the reconvening is announced at the original meeting.
Omission of Notice:
1. The accidental omission to give notice of a meeting or the non-receipt of notice of a meeting by any Director of the Board does not invalidate resolutions passed or proceedings taken at a meeting, and any Director may waive notice of such meetings and may ratify, approve, or confirm any or all proceedings taken.
2. A waiver referred to in section 21(a) above may be validly given either before or after the meeting to which the waiver relates.
Quorum: A quorum of the Board and any Committee is a simple majority of the members holding office on the Board or the Committee.
Voting: The Board shall strive to make decisions by consensus whenever achievable. Where consensus is not achievable, questions arising at any meeting of the Board shall be decided by a simple majority of the votes cast by all members present and eligible. In the case of an equality of votes, the Chair, who shall ordinarily not have a vote, shall have the deciding vote. All votes shall be taken either verbally or by a show of hands unless a ballot is requested by any Director present. A Director may rescind his request for a ballot at any time.
Notwithstanding section 23, the Board may, by resolution, establish specific items for which more than a simple majority of votes is required for assent.
Telephone or Digital Participation: A Director may participate in a meeting of the Board or any Committee by means of such telephone or other digital or electronic communication facilities as permit all persons participating in the meeting to hear each other, and a Director participating in the meeting by that means is deemed to be present at the meeting.
Resolutions in Lieu of Meeting: Notwithstanding any of the foregoing provisions of this By-law, a resolution signed or acknowledged in writing electronically by all the Directors entitled to vote on that resolution at a meeting of the Board or by all members of any Committee of the Board is as valid as if it had been passed at a meeting of the Board or of any Committee of the Board and is effective from the date specified in the resolution, but that date shall not be prior to the date on which the first Director signed or acknowledged the resolution.
Minutes: Minutes may be kept for all meetings of the Board and shall be circulated to all Directors. Minutes shall be approved by a majority vote at a subsequent Board meeting.
Procedure at Meetings: Questions of procedure at meetings of the Board or any committee of the Board which have not been provided for in this By-law shall be determined in accordance with the rules of order established by the Board from time to time and where no such procedure has been established, shall be determined in accordance with Roberts Rules of Order.

CHAIR AND VICE-CHAIR

Board Chair: The Chair shall call and preside at all meetings of the Board and be an Ex-Officio member of all Committees of the Board, report to the Founder on the activities of the Board and the Foundation and perform such other duties as may be assigned from time to time by the Board by resolution.
The Vice-Chair shall: perform such other duties as may be assigned from time to time by the Board by resolution and during the absence or disability of the Chair shall have the powers and duties of that office.
33. Removal of Chair or Vice-Chair: The Founder may remove the Chair or Vice-Chair of the Board before the expiry of their term. Where the Chair or Vice-Chair is removed pursuant to this section, the Founder shall appoint a Chair or Vice-Chair, as applicable, to fill the vacancy.

OFFICERS

The Officers of the Foundation include those individuals as may be engaged, appointed or elected from time to time.
1. The Board may elect from among its Directors to serve as, and/or appoint an individual who is not a Director, to serve as Treasurer, Secretary, or as an Officer other than the Chair or Vice-Chair for such term as determined by the Board.
2. Non-Directors appointed to or holding the position of Secretary or Treasurer of the Foundation shall not be entitled to be Directors or to vote at meetings of the Board or any Committees of the Board by virtue of their office.
Removal of Certain Officers:
1. Removal of Treasurer: The Board may remove the Treasurer by resolution at any time and may elect/appoint a Director or other individual to fill the vacancy for the balance of the term remaining;
2. Removal of Secretary: The Board may remove the Secretary by resolution only with the approval of the President and Chief Executive Officer of the Foundation.
Treasurer: Where a Treasurer is appointed and unless otherwise determined by the Board by resolution, the Treasurer shall conduct the banking business of the Board, advise the Board on the financial matters of the Board and the Foundation, ensure that all funds of the Foundation are kept in proper and safe custody, ensure that financial statements are prepared and submitted to the Board at the request of the Board or the Board Chair, and perform such other duties as may be assigned from time to time by the Board by resolution.
Secretary: Unless otherwise determined by the Board by resolution, the Secretary shall:
1. give or cause to be given notices of all meetings of the Board and, as directed by the Board, meetings of Committees of the Board;
2. oversees the preparation, in consultation with the Board Chair, and distributes the agendas of Board meetings and, as directed by the Board, of Committees of the Board;
3. attends all Board meetings and, as directed by the Board, meetings of Committees of the Board, and oversees the recording and circulation to all Directors the minutes of such meetings;
4. maintains a record of Directors’ attendance at meetings of the Board;
5. conducts correspondence as directed by the Board;
6. performs such other duties as may be assigned from time to time by the Board by resolution.
Officers shall disclose in writing or request to have entered into the minutes of any meeting the nature and extent of any interest in any party, material contract, or proposed material contract with the Foundation and abide by the policies of the Foundation in respect to conflicts of interest.

PRESIDENT & CHIEF EXECUTIVE OFFICER

The Chief Executive Officer:
1. Appointment: The Founder may appoint and determine the terms and conditions of employment of a Chief Executive Officer. In the absence of the Founder appointing a Chief Executive Officer, the Board may appoint and determine the terms and conditions of employment of a Chief Executive Officer;
2. Responsibilities: The Chief Executive Officer reports to the Board and shall be responsible for the general management and conduct of affairs of the Foundation including the direction and control of the business in accordance with legislation, By-laws, rules, policies and directions of the Board;
3. Ex-Officio: The Chief Executive Officer shall be appointed by the Founder as an Ex-Officio, non-voting member of the Board.
If the Chief Executive Officer is unable to act in his capacity, the Founder may, or in the absence of such an appointment the Board may, appoint an individual to temporarily assume the Chief Executive Officer’s responsibilities.

CONFIDENTIALITY

All deliberations of the Board, and all corporate records, material and information obtained by a member of the Board and not generally available to the public shall be considered confidential. Every Director, Officer, and employee of the Foundation shall respect the confidentiality of corporate records, material and information including matters brought before the Board or before any Committee of the Board, or that is sent to Directors on a confidential basis, and any such corporate record, material, or information shall not be communicated to any person not entitled by law to that record, material, or information. For greater certainty, such record, material, or information may be communicated within the Foundation, by management and staff, on a confidential need-to-know basis for operational purposes. Unless otherwise required by law, any record, material, or information to be communicated as required by law shall be communicated by a person(s) designated by the Board. For greater certainty, any record, material, or information covered by The Freedom of Information and Protection of Privacy Act (“FIPPA”) shall only be disclosed in accordance with FIPPA. Directors, Officers, and employees shall safeguard such records, material, and information from improper access.

ENACTMENT OR AMENDMENT OF BY-LAWS

This By-law and any other By-law of the Board, and any amendment thereof, comes into force on the passing thereof by the Board.

REPEAL OF PREVIOUS BY-LAW

All previous By-laws, Charters, or instruments for the equivalent purpose, of the Foundation are hereby repealed.

Approved by the Board of Directors of the Donovan Martin Foundation, this DD day of Septeber 21, 2018.

BY-LAW NO. 2

A By-law respecting the release and indemnification of Directors and Officers of the Donovan Martin Foundation.

BE IT AND IT IS HEREBY ENACTED as a By-law of the Donovan Martin Foundation as follows:

INTERPRETATION

In this By-law:
1. “Board” means the Board of Directors of the Foundation;
2. “By-laws” means any by-laws of the Foundation that may be developed and implemented by the Board from time to time;
3. “Committee” means any ad hoc, advisory, or standing committee established by the Board from time to time;
4. “Foundation” means the Donovan Martin Foundation
5. “Director” means a member of the Board of the Foundation
6. “Ex-Officio” means a person who has been appointed to provide the Board or a Committee with operational or technical expertise. The Ex-Officio member is a non-voting member of the Board or Committee;
7. “Officer” means the President and Chief Executive Officer, the Chief Financial Officer, an Executive Vice-President or Vice-President, the Secretary, and the Treasurer;
The headings used in this By-law are inserted for reference purposes only and shall not affect the construction or interpretation of this By-law.
In this By-law, where the context requires, the singular includes the plural, the plural includes the singular and the word “person” includes individuals, Foundations, partnerships, or any number or aggregate of persons.

Release and indemnification

In accordance with the By-law no. 2:
1. the Directors and Officers of the Foundation are not liable or answerable for any debt, liability, or obligation of the Foundation for any act, error, or omission of the Foundation or any of its Officers, employees, or agents; and
2. the Directors and Officers of the Foundation and any person acting under the instructions of any of them are not personally liable for any loss or damage suffered by any person by reason of anything done, caused, permitted or authorized to be done by them in good faith and without negligence in the course of the administration of the Foundation
The Foundation and the successors and assigns of the Foundation shall defend, indemnify, and save harmless every Director and Officer, and the heirs, executors, and administrators of every Director and Officer, from and against every Claim for loss, costs, damages, administrative or monetary penalties, and expenses with respect to, or in any way arising out of, anything in good faith done, or not done, or caused, permitted or authorized to be done or not to be done, by the Director or Officer during the Employment of the Director or Officer in the course of or supposed course of Employment provided the conduct which gave rise to the Claim did not include any dishonest, fraudulent, criminal or malicious act or omission on the Director’s or Officer’s part, all of the foregoing being collectively referred to as “the Indemnity”.
The Foundation and the successors and assigns of the Foundation forever remise, release, acquit, and discharge every Director and Officer, and the heirs, executors and administrators of every Director and Officer, of and from all Claims which the Foundation has had or now has or hereafter can, shall or may have, for, or by reason or in any way arising out of, anything in good faith done, or not done, or caused, permitted or authorized to be done, or not done, by the Director or Officer in the course of or supposed course of Employment, provided the conduct which gave rise to the Claim did not include any dishonest, fraudulent, criminal or malicious act or omission on the Director’s or Officer’s part, all of the foregoing being collectively referred to as “the Release”.
In the event and each time that a Claim to which the Indemnity applies is brought against a Director or Officer the following shall apply:
1. Upon being served with notice of the Claim the Director or Officer shall advise the Chair of the Board of the Claim;
2. A preliminary determination shall be made by the Foundation as to whether indemnification of the Director or Officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in clause 4 and 5 of this By-Law;
3. If the preliminary determination described in clause 7(b):
  1. is that indemnification is proper in the circumstances, there shall be delivered to the Foundation an undertaking by or on behalf of the Director or Officer in form satisfactory to the Foundation’s legal counsel, that any loss, costs, damages, penalties or expenses paid by the Foundation on behalf of the Director or Officer will be repaid to the Foundation if it shall ultimately be determined that such person failed to meet the applicable standard set forth in clause 4 and 5;
  2. is that indemnification is not proper in the circumstances, the Director or Officer will be solely responsible for the conduct of the defence and the payment of any damages, penalties or costs resulting therefrom, subject always to the right to contest the preliminary determination made hereunder and to pursue Indemnity from the Foundation for all damages, penalties and costs, including legal costs, in the event that it is determined that the Director or Officer in fact met the applicable standard of conduct set forth in clause 4 and 5.
4. Upon receiving notice of a Claim in accordance with clause 7(a), and after a positive preliminary determination has been made and the undertaking provided, the Director or Officer and the legal counsel for the Foundation shall meet and appoint legal counsel acceptable to both parties. Should both parties be unable to agree on legal counsel, the Foundation shall unilaterally appoint legal counsel. The Foundation accepts responsibility for the conduct of the action and the Director or Officer must cooperate fully with legal counsel;
5. In the event of a positive preliminary determination, or the Director or Officer successfully contests a negative determination under clause 7(c), or where the Director or Officer is substantially successful on the merits of the action or proceeding constituting the Claim, then the Foundation may:
  1. pay any damages, penalties, or costs awarded against the Director or Officer in the Claim;
  2. pay all expenses, legal fees, costs, and disbursements incurred by the Director or Officer in respect to the Claim;
  3. pay any sum required to be paid by the Director or Officer in connection with satisfying a judgment in respect to the Claim; and
  4. pay any sum required to be paid by the Director or Officer in connection with the settlement of the Claim if such settlement is approved by the Foundation before the same is finalized.
6. If the Director or Officer fails to cooperate with the appointed legal counsel at all times, the Foundation may abrogate the Release and the Indemnity;
7. Notwithstanding clauses 4 and 5, the Release and the Indemnity afforded to a Director and Officer shall apply to the extent that the Director or Officer is not covered by any scheme of professional or other liability insurance. If the Director or Officer is covered by such scheme of professional or other liability insurance, the Release and the Indemnity afforded a Director and Officer shall apply to only that part of such Claim which is in excess of the amount recoverable or recovered from such insurance. In the case of a dispute as to the eligibility of a Claim made by a Director or Officer against a scheme of professional or other liability insurance, the Foundation shall, upon receipt from the Director or Officer of a properly executed assignment to the Foundation of that Claim, pay all damages, penalties, costs, legal fees, and disbursements, and the Foundation shall be subrogated to the rights of the Director or Officer against the insurer with respect to the disputed Claim, and may sue on these rights in the name of the Director or Officer;
8. The Release and the Indemnity are effective retroactively to the date the Director or Officer commenced Employment;
9. The Release and the Indemnity shall in no way affect the rights of the Foundation, its successors and assigns, to discipline or dismiss any employee for just cause for anything done, or not done, or caused, permitted or authorized to be done, or not done, by the employee in the course of, or supposed course of Employment;
10. Notwithstanding clauses 4 and 5, the Release and the Indemnity shall not apply to the operation of a motor vehicle, as defined in The Highway Traffic Act, by a Director or Officer in the course of, or supposed course of, Employment.
This By-law shall apply to and provide release and indemnification for all previous Directors and Officers of the Foundation mutatis mutandis.

Approved by the Board of Directors of the Donovan Martin Foundation, this DD day of September 21, 2018.