188 (1) If within 120 days after the date of a take-over bid or an issuer bid, the bid is accepted by the holders of not less than 90 per cent of the securities of any class of securities to which the bid relates, other than securities held at the date of the bid by or on behalf of the offeror, or an affiliate or associate of the offeror, the offeror is entitled, upon complying with this section, to acquire the securities held by dissenting offerees.  R.S.O. 1990, c. B.16, s. 188 (1). Shares of dissenting offeree (2) An offeror may acquire the securities of any class to which the bid relates that are held by a dissenting offeree by sending, on or before the earlier of the sixtieth day following the termination of the bid and the one hundred and eightieth day following the date of the bid, an offeror’s notice to each dissenting offeree stating in substance that, (a)  offerees holding more than 90 per cent of the securities to which the bid relates other than securities held at the date of the bid by or on behalf of the offeror or an affiliate or associate of the offeror have accepted the bid; (b)  the offeror is bound to take up and pay for or has taken up and paid for the securities of the offerees who accepted the bid; (c)  a dissenting offeree is required to elect, (i)  to transfer his, her or its securities to the offeror on the terms on which the offeror acquired the securities of the offerees who accepted the bid, or (ii)  to demand payment of the fair value of his, her or its securities in accordance with subsections (13) to (21) by notifying the offeror within twenty days after receipt of the offeror’s notice; (d)  a dissenting offeree who does not notify the offeror in accordance with subclause (c) (ii) is deemed to have elected to transfer his, her or its securities to the offeror on the same terms that the offeror acquired the securities from the offerees who accepted the bid; and (e)  a dissenting offeree must send the certificates, if any, representing his, her or its securities to which the bid relates to the offeree corporation or, in the case of an issuer bid, to the offeror within twenty days after the dissenting offeree receives the offeror’s notice.  R.S.O. 1990, c. B.16, s. 188 (2); 2000, c. 26, Sched. B, s. 3 (10); 2011, c. 1, Sched. 2, s. 1 (14). Notice (3) In the case of a take-over bid, concurrently with sending the offeror’s notice under subsection (2), the offeror shall send or deliver to the offeree corporation a copy of the offeror’s notice, which constitutes a demand under subsection 88 (1) of the Securities Transfer Act, 2006, that the offeree corporation not register a transfer with respect to each share held by a dissenting offeree.  2006, c. 8, s. 122. Sending in share certificates (4) A dissenting offeree to whom an offeror’s notice is sent under subsection (2) shall, within twenty days after receiving that notice, (a)  send the certificates, if any, representing his, her or its securities to which the take-over bid relates to the offeree corporation; or (b)  send the certificates, if any, representing his, her or its securities to which the issuer bid relates to the offeror.  R.S.O. 1990, c. B.16, s. 188 (4); 2011, c. 1, Sched. 2, s. 1 (15, 16). Payment by offeror (5) Within twenty days after the offeror sends an offeror’s notice under subsection (2), the offeror shall pay or transfer to the offeree corporation the amount of money or other consideration that the offeror would have had to pay or transfer to all dissenting offerees if they had elected to accept the take-over bid under subclause (2) (c) (i).  R.S.O. 1990, c. B.16, s. 188 (5). Trust funds (6) An offeree corporation is deemed to hold in trust for dissenting offerees the money or other consideration it receives under subsection (5), and the offeree corporation shall deposit the money in a separate account in a financial institution described in subsection (7.1) and shall place the other consideration in the custody of such a financial institution.  2007, c. 7, Sched. 7, s. 181 (1). Same (7) The offeror making an issuer bid is deemed to hold in trust for dissenting offerees the money or other consideration that the offeror would have had to pay or transfer to all dissenting offerees if they had elected to accept the issuer bid under subclause (2) (c) (i) and, within 20 days after the issuer sends an offeror’s notice under subsection (2), the issuer shall deposit any such money in a separate account in a financial institution described in subsection (7.1) and shall place the other consideration in the custody of such a financial institution within 20 days after the offeror sends an offeror’s notice under subsection (2).  2007, c. 7, Sched. 7, s. 181 (1). Same (7.1) A financial institution referred to in subsection (6) or (7) is, (a)  a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada); (b)  a corporation registered under the Loan and Trust Corporations Act; (c)  a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 2020; or (d)  a retail association as defined under the Cooperative Credit Associations Act (Canada).  2007, c. 7, Sched. 7, s. 181 (1); 2020, c. 36, Sched. 7, s. 296 (2). Notice of compliance (8) Within ten days after the offeror complies with subsection (5) or subsection (7), as the case may be, the offeror shall give notice of the date of such compliance to all dissenting offerees.  R.S.O. 1990, c. B.16, s. 188 (8). Application to court (9) At any time prior to the thirtieth day following the day upon which the offeror’s notice referred to in subsection (2) is sent to dissenting offerees, a dissenting offeree who has demanded payment of the fair value of his, her or its securities in accordance with subclause (2) (c) (ii) may apply to the court for an order requiring the person who has sent the offeror’s notice to provide, in such form as the court considers appropriate, such additional security for payment to dissenting offerees of the fair value of their securities as the court may determine to be necessary, pending the determination of such fair value.  R.S.O. 1990, c. B.16, s. 188 (9). Where shares deemed acquired (10) The securities of all dissenting offerees shall be deemed to have been acquired by the offeror, (a)  where an application under subsection (9) has not been made within the time set out in subsection (9), upon the expiration of that time; or (b)  where an application has been made under subsection (9), upon compliance with the order made in respect of the application.  R.S.O. 1990, c. B.16, s. 188 (10). Duties of offeree corporation (11) Within 10 days after the acquisition of the securities of dissenting offerees under subsection (10) by an offeror who has made a take-over bid, the offeree corporation, (a)  shall, (i)  issue to the offeror one or more security certificates in respect of the securities so acquired, or (ii)  if a resolution is passed by the directors under subsection 54 (2) with respect to any class and series of securities so acquired, issue to the offeror uncertificated securities in respect of the securities of such class and series so acquired and send the offeror the notice referred to in subsection 54 (3); and (b)  shall send to each dissenting offeree who elects to accept the take-over bid terms under subclause (2) (c) (i), (i)  the money or other consideration to which the dissenting offeree is entitled as payment for or in exchange for his, her or its securities, if, (A)  the dissenting offeree’s securities were uncertificated, or (B)  the dissenting offeree’s securities were represented by security certificates and the dissenting offeree has sent the certificates to the offeree corporation, or (ii)  if the dissenting offeree’s securities were represented by security certificates and the dissenting offeree has not sent the certificates to the offeree corporation, a notice stating in substance that, (A)  the certificates representing the dissenting offeree’s securities have been cancelled, (B)  the offeree corporation or a designated person holds in trust for the dissenting offeree the money or other consideration to which the dissenting offeree is entitled as payment for or in exchange for his, her or its securities, and (C)  the offeree corporation will, subject to subsections (13) to (21), send that money or other consideration to the dissenting offeree forthwith after receiving the certificates representing the dissenting offeree’s securities.  2011, c. 1, Sched. 2, s. 1 (17). Payment by offeror (12) Within 10 days after the acquisition of the securities of dissenting offerees under subsection (10) by an offeror who has made an issuer bid, the offeror shall send to each dissenting offeree who elects to accept the issuer bid terms under subclause (2) (c) (i), (a)  the money or other consideration to which the dissenting offeree is entitled as payment for or in exchange for his, her or its securities, if, (i)  the dissenting offeree’s securities were uncertificated, or (ii)  the dissenting offeree’s securities were represented by security certificates and the dissenting offeree has sent the certificates to the offeror; or (b)  if the dissenting offeree’s securities were represented by security certificates and the dissenting offeree has not sent the certificates to the offeror, a notice stating in substance that, (i)  the certificates representing the dissenting offeree’s securities have been cancelled, (ii)  the offeror or a designated person holds in trust for the dissenting offeree the money or other consideration to which the dissenting offeree is entitled as payment for or in exchange for his, her or its securities, and (iii)  the offeror will, subject to subsections (13) to (21), send that money or other consideration to the dissenting offeree forthwith after receiving the certificates representing the dissenting offeree’s securities.  2011, c. 1, Sched. 2, s. 1 (17). Application to fix fair value (13) If a dissenting offeree has elected to demand payment of the fair value of his, her or its securities under subclause (2) (c) (ii), the offeror may, in the case of a take-over bid, within twenty days after it has complied with subsection (5) or, in the case of an issuer bid, within twenty days after it has complied with subsection (7), apply to the court to fix the fair value of the securities of that dissenting offeree.  R.S.O. 1990, c. B.16, s. 188 (13). Idem (14) If an offeror fails to apply to the court under subsection (13), a dissenting offeree may apply to the court for the same purpose within a further period of twenty days.  R.S.O. 1990, c. B.16, s. 188 (14). Where no application (15) If no application is made to the court under subsection (13) or (14) within the periods set out in those subsections, a dissenting offeree is deemed to have elected to transfer his, her or its securities to the offeror on the same terms that the offeror acquired the securities from offerees who accepted the take-over or issuer bid and, provided that the dissenting offeree has complied with subsection (4), the issuer or the offeree corporation, as the case may be, shall pay or transfer to the dissenting offeree the money or other consideration to which the dissenting offeree is entitled.  R.S.O. 1990, c. B.16, s. 188 (15). Security for costs not required (16) A dissenting offeree is not required to give security for costs in an application made under subsection (13) or (14).  R.S.O. 1990, c. B.16, s. 188 (16). Parties (17) Upon an application under subsection (13) or (14), (a)  all dissenting offerees referred to in subclause (2) (c) (ii) whose securities have not been acquired by the offeror shall be joined as parties and are bound by the decision of the court; and (b)  the offeror shall notify each such dissenting offeree of the date, place and consequences of the application and of the dissenting offeree’s right to appear and be heard in person or by counsel.  R.S.O. 1990, c. B.16, s. 188 (17). Idem (18) Upon an application to the court under subsection (13) or (14), the court may determine whether any other person is a dissenting offeree who should be joined as a party, and the court shall then fix a fair value for the securities of all dissenting offerees.  R.S.O. 1990, c. B.16, s. 188 (18). Appointment of appraisers (19) The court may appoint one or more appraisers to assist the court in fixing a fair value for the securities of each dissenting offeree.  R.S.O. 1990, c. B.16, s. 188 (19). Final order (20) The final order of the court shall be made against the offeror in favour of each dissenting offeree.  R.S.O. 1990, c. B.16, s. 188 (20). What court may order (21) In connection with proceedings under this section, the court may make any order it thinks fit and, without limiting the generality of the foregoing, it may, (a)  fix the amount of money or other consideration that is required to be held in trust under subsection (6) or (7); (b)  order that the money or other consideration be held in trust by a person other than, (i)  the offeree corporation, or (ii)  in the case of an issuer bid, the offeror corporation; (c)  allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date the dissenting offeree sends his, her or its security certificates under subsection (4) until the date of payment; or (d)  order that any money payable to a dissenting offeree who cannot be found be paid to the Public Guardian and Trustee.  R.S.O. 1990, c. B.16, s. 188 (21). Section Amendments with date in force (d/m/y) 2000, c. 26, Sched. B, s. 3 (10) - 06/12/2000 2006, c. 8, s. 122 - 01/01/2007 2007, c. 7, Sched. 7, s. 181 (1) - 01/10/2009 CTS 30 AU 10 - 1 2011, c. 1, Sched. 2, s. 1 (13) - no effect - see 2017, c. 2, Sched. 12, s. 9 - 22/ 03/2017; 2011, c. 1, Sched. 2, s. 1 (14-17) - 31/12/2015 2020, c. 36, Sched. 7, s. 296 (2) - 01/03/2022