A corporation is the most common form of business organization. In Canada, the words “corporation” and “company” are largely synonymous. A corporation is a separate legal entity constituted by one or more persons who become its members or shareholders. Corporations have perpetual existence and may own property, carry on business, possess rights and incur liabilities. Generally, shareholders of a corporation have no authority to deal with the assets of the corporation and cannot make legal commitments which bind the corporation. The shareholders maintain control of the corporation by voting their shares to elect the directors who are, in turn, responsible for the management of the corporation. The liability of the shareholders is usually limited to the amount of their capital investment in the corporation. A corporation is taxed as a separate legal entity at the rate of tax applicable to corporations. The income or loss generated by the corporation accrues to the corporation and not to the shareholders. (For more information concerning the taxation of income earned by corporations in Canada, see the section below entitled “Income Tax Considerations”.)
The corporate form is a flexible structure for business organizations. It is possible to utilize various classes of shares and share conditions to provide different levels of participation, control and risk-taking in the corporation. Once established, a corporation can obtain additional funds by the sale of unissued treasury shares or by the issuance of debt. Most corporations in Canada are “private” corporations, generally being corporations which have fewer than 50 shareholders, which carry restrictions on the right to transfer the shares of the corporation (the requirement that the consent of a majority of the directors or the shareholders to any proposed sale or transfer of shares be obtained being the most common restriction) and which expressly prohibit any invitation to the public to subscribe for securities of the corporation. Non-private or “public” corporations are generally more widely held and the shares of such corporations are often listed on a stock exchange. (For more information concerning the financing of Canadian operations, including the legislative framework governing the distribution of securities in Canada, see the section below entitled “Financing Canadian Operations”.)
Canadian Subsidiary Corporation
If a company decides to operate in Canada through a Canadian subsidiary, there is a choice of jurisdictions for the incorporation between the federal Canada Business Corporations Act (the “CBCA”) and the equivalent legislation of each of the provinces. Generally, there is some uniformity in this legislation and, where the principal activities are to be, at least initially, in one of British Columbia, Alberta, Ontario or Quebec, the choice would be as between the CBCA and the British Columbia Business Corporations Act (the “BCBCA”),
the Business Corporations Act (Alberta) (the “ABCA”), the Business Corporations Act (Ontario) (the “OBCA”) or the Business Corporations Act (Quebec) (the “QBCA”), as the case may be. In each of these jurisdictions, the new entity will have the flexibility and the facility to carry on business throughout Canada, subject to complying with registration and/or licensing requirements of any particular province in which the corporation
proposes to carry on business.
In deciding whether to incorporate under the CBCA or provincial legislation, the type of business to be conducted by the corporation should be one of the factors taken into consideration. For example, a corporation wishing to register as a venture capital corporation in British Columbia, as a railway company in Alberta, or as a small business development corporation in Ontario, must be incorporated under the relevant provincial legislation.
The principal distinction between a federal and a provincial corporation is that a federal corporation is usually entitled as of right to carry on business under its corporate name throughout Canada. A provincially incorporated corporation, on the other hand, is required to obtain an extra-provincial licence or become registered in each province in which it proposes to carry on business, and such extra-provincial licence or registration can be refused by another province, if the name of the provincial entity conflicts with the name of an existing corporation already incorporated, licensed or registered in the other province. In Quebec, corporations are also required to adopt a French trade name in conformity with the Charter of the French Language. Accordingly, especially with provincially incorporated corporations, it may be advisable to clear the name and seek registration or licensing in the provinces in which the corporation expects to carry on business in the foreseeable future at the time the business is first established in Canada. A federal corporation is also required to obtain an extra-provincial licence or registration in each province in which it “carries on business”, however, no province (except Quebec) can refuse to register the corporation. (See the section below under the heading “Foreign Corporation - Branch Operation” for further discussion of when an extra-provincial licence is required.)
The incorporation fee ranges from $100 to $360, depending on the jurisdiction. More information concerning the incorporation and organization of corporations in Canada is set out below under the heading “Incorporation and Organization of Corporations”. (The tax consequences of using a Canadian subsidiary are outlined below under the section “Income Tax Considerations”.)
Foreign Corporation - Branch Operation
If a branch operation is to be established, the foreign corporation is required to register or become licensed as an extra-provincial corporation in each province in which it “carries on business”. The question whether any particular activity or group of activities will constitute “carrying on business” is not specifically defined in most cases, and is to be determined by reference to the particular facts and circumstances. Registration will clearly be required in any province in which the corporation maintains an office or other fixed place
of business. The registration in any particular province will be subject to the acceptability of the name of the corporation and registration will be denied if such name is the same as, or closely resembles, the name of another corporation already incorporated or registered in the province. However, a corporation with an unacceptable corporate name may sometimes be registered to carry on business in a province under a different business name or style that is acceptable, without having to change its corporate name. In Quebec, foreign corporations are also required to adopt a French trade name in conformity with the Charter of the French Language. The fee payable for registration of an extra-provincial licence is generally similar to that payable in respect of incorporation.
Incorporation and Organization of Corporations
- A. INCORPORATION
To incorporate a CBCA, ABCA, OBCA or QBCA corporation, articles of incorporation must be filed in the
appropriate office along with the required fee. The articles of incorporation must provide certain information, including the name of the proposed corporation, its registered office, a description of the classes of shares, any restrictions on share transfers, the number of directors and the restrictions on the business that the corporation may carry on (if any). The filing is an over-the-counter procedure and registration
can usually be completed on the same date that the articles of incorporation are filed.
To incorporate a company under the BCBCA, a notice of articles, together with an incorporation application and the required fee, must be filed electronically with the Registrar of Companies. The incorporation application sets out the name of the company, the desired effective incorporation date, and the name and address of the incorporator, and includes a certification confirming that the incorporator has signed an Incorporation Agreement relating to the company. The notice of articles sets out the name of the company, the translation of the name (if any), the names and addresses of the initial directors of the company, the addresses of the company’s registered and records offices, a description of the authorized share structure of the company, and whether there are any special rights or restrictions.
- B. BY-LAWS
Following the incorporation of a CBCA, ABCA, OBCA or a QBCA corporation, a general by-law to regulate
the affairs of the corporation is passed. If desired, further by-laws relating to the regulation of the business and affairs of the corporation may be passed. Under the BCBCA, the articles are the general regulations which govern the internal affairs of the company (similar to the general by-law of a CBCA, ABCA or OBCA corporation). They set out: the terms of any special rights and restrictions attaching to shares of the company; any restrictions on the businesses to be carried on by, or the powers of the company; and any restrictions on share transfers. They may also contain special provisions permitted by the BCBCA.
- C. DIRECTORS
Each of the CBCA, the BCBCA, the ABCA, the OBCA and the QBCA, permit a corporation to have a flexible number of directors, being not less than one, or in the case of a reporting company/public corporation, at least three directors. All CBCA, ABCA, OBCA and QBCA private corporations and BCBCA non-public companies must have boards of directors consisting of one or more directors. Under the CBCA, subject to certain exemptions (including uranium mining, book publishing or distribution, book sales, and film or video distribution), only 25% of the directors need be resident Canadians (or if there are less than four directors, only one must be a resident Canadian). Under the OBCA, at least 25% of the directors must be resident Canadians (or if there are less than four directors, one director must be a resident Canadian). There are no director residency requirements under the BCBCA and the ABCA requires that at least one quarter of the directors be resident Canadians. The QBCA contains no requirement that there be a majority of resident Canadians on the board of directors.
A “resident Canadian” is defined in the CBCA as:
- • a Canadian citizen ordinarily resident in Canada;
a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada) and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which he or she first became eligible to apply for Canadian citizenship.
The corresponding definitions in the ABCA and the OBCA are essentially the same, except that they do not contain the exception found in the last two lines of the above definition.
Under the CBCA, 25 percent of the directors (or, if there are less than four directors, at least one of them) present at any meeting must be resident Canadians. Under the ABCA, at least one-quarter of the directors present must be Canadian residents.
The directors of a corporation are required to manage or supervise the management of the business and affairs of the corporation. The officers of a corporation undertake the day-to-day operations and affairs of the corporation. Directors have a fiduciary duty to act honestly, in good faith and with a view to the best interests of the corporation, and must also exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
Directors may incur personal liability in their capacities as directors under the common law and under an increasing number of statutory provisions, including the Income Tax Act (Canada), environmental protection legislation, employment legislation, and occupational health and safety legislation, as referred to elsewhere in this publication. For example, under the CBCA, the BCBCA, the ABCA, the OBCA and the QBCA, directors are liable to the corporation if they vote for, or consent to, a resolution authorizing certain corporate action contrary to those Acts, such as the declaration of a dividend or other distribution, at a time when there are reasonable grounds for believing that the corporation would be unable to satisfy a solvency test.
- D. AUDITORS
Both federal and provincial corporations are required to appoint an auditor, unless exempted. Generally, a corporation may be exempt from this requirement if the corporation is not a public corporation and all the shareholders consent to the exemption.
- E. SHAREHOLDERS’ AGREEMENTS
The shareholders of a corporation may enter into a shareholders’ agreement which provides for the conduct of the business and affairs of the corporation, regulates the rights and obligations of the shareholders to one another, and which may provide for rights of first refusal or other provisions dealing with the transfer of shares. Under the CBCA, the ABCA, the OBCA and the QBCA, all of the shareholders may agree, under a “unanimous shareholders’ agreement”, to restrict in whole or in part, the powers of the directors to manage the business and affairs of the corporation, and to give to the shareholders the rights, powers and duties, which they have removed from the directors. The directors are thereby relieved of such duties and liabilities. Such an agreement might be used in a subsidiary corporation so that it is managed directly by the parent company with an active board of directors. Under the BCBCA, the articles of the company may restrict the powers of the directors and may transfer those powers, in whole or in part, to one or more other persons.
- F. SHARE CAPITAL
A share is a fractional part of the capital of a corporation which confers upon the holder a certain right to a proportionate part of the assets of the corporation, whether by way of dividend or upon a distribution on the dissolution of the corporation, and governs the right to vote at shareholder meetings. The corporation may issue more than one class of shares and may designate the shares in any way, unless restricted by the constating documents. There is no restriction on the number of shares of each class that may be issued by a corporation. Under the CBCA, the ABCA and OBCA, the concept of par value shares does not exist and, therefore, shares are not expressed as having a nominal or specified value in dollars or other currency. Under the BCBCA and the QBCA, the authorized capital of a company may consist of shares with or without par value. The share capitalization of a corporation may be very flexible and can be tailored to meet its specific requirements. Very simple share provisions will usually suffice in the cases of a small or closely-held corporation.
If the share capitalization of a corporation consists of only one class of shares, all the shareholders will have equal rights: the right to vote at any shareholders’ meeting; the right to receive the remaining property of the corporation on dissolution; and the right to receive any dividend declared by the corporation. If the articles provide for more than one class of shares, the above rights must be attributed to at least one of the classes of shares, but it is not necessary that one class have all of these rights. If there is more than one class of shares, or if there is only one class of shares with rights in addition to the fundamental rights described above attaching to the shares, these rights and conditions must be set out in the articles of a CBCA, a BCBCA, an ABCA, an OBCA and a QBCA corporation. The rights that may be attached to the shares of a class are virtually limitless, but some of the common provisions are as follows:
- • the right to cumulative, non-cumulative, partially cumulative or fully participating dividends;
- • a preference over another class or other classes of shares as to the payment of dividends;
- • a preference over another class or other classes of shares as to the repayment of capital upon the dissolution of the corporation;
- • the right to elect a specified number of directors, or other special voting rights or restrictions;
- • the right to convert a certain class of shares into another class of shares or a debt obligation;
- • the right of the corporation, at its option, to redeem all or part of the shares of the class; and
- • the right of the shareholder, at its option, to require the corporation to redeem its shares (this form of redemption is known as retraction).
It is also possible to have several series of shares within one class of shares. The use of these series is advantageous where the directors wish to issue shares with certain differing characteristics over an extended period of time, without obtaining the shareholders’ approval of the particular characteristics of each series when the series is issued.
Unlimited Liability Companies
In recent years, the unlimited liability company (“ULC”) has become popular as a hybrid entity that can offer U.S. investors certain tax advantages. As a company, a ULC will be treated as a taxable Canadian corporation under the Income Tax Act (Canada) (and must, therefore, file Canadian income tax returns), yet be eligible for partnership tax treatment in the U.S. (thereby affording U.S. shareholders the same U.S. tax treatment as U.S. limited liability companies). The “check the box” rules adopted by the U.S. Internal Revenue Service on January 1, 1997, provide that any Canadian corporation or company formed under any federal or provincial law, which provides that the liability of all the members of such corporation or company will be unlimited, can qualify for partnership treatment, regardless of what other “corporate characteristics” it may possess. Under the “check the box” process, ULCs can, for U.S. tax purposes, elect either corporate or flow-through status by checking the appropriate box on the election form. There are a number of U.S. tax advantages to opting for the flow-through treatment, including enabling the U.S. investor to use any anticipated start-up losses in the Canadian operation for U.S. tax purposes.
ULCs are incorporated under the ABCA, the BCBCA and the Companies Act (Nova Scotia) in a manner similar to the other corporate statutes in Canada. It is also possible to convert existing corporations incorporated under the CBCA, and most of the other provincial corporate statutes, into a ULC by, in the case of Alberta, having such corporation continued under the laws of Alberta as a ULC and, in the case of British Columbia or Nova Scotia, having such corporation continued under the laws of either province and then amalgamated with a newly incorporated shell ULC (or, in the case of British Columbia, having such continued corporation alter its notice of articles). The costs for registering a ULC in Alberta is significantly less expensive then the costs for registering a Nova Scotia ULC.
As with ABCA corporations, one quarter of the directors of an Alberta ULC must be resident Canadians. There are no restrictions on the residency of directors of British Columbia or Nova Scotia ULCs.
The main difference between ULCs and other federal and provincial corporations is that the shareholders of a ULC have unlimited joint and several liability for the obligations of the ULC upon its dissolution. Therefore, prospective shareholders should consider carefully whether or not to use these vehicles, or if intervening liability entities could or should be used to reduce their exposure. For example, a U.S. investor could interpose a “stopco” holding corporation between it and the ULC, and thereby effectively limit the U.S. investor’s liability for the ULC’s obligations. Shareholders of Alberta ULCs may enter into unanimous shareholder agreements, whereas Nova Scotia and British Columbia do not recognize unanimous shareholder agreements. As a result, any limitations on directors’ authorities of Nova Scotia ULCs must be set out in the publicly filed articles of association, and any limitations on directors’ authorities of British Columbia ULCs must be set out in its articles.
Under each of the ABCA and BCBCA and the Companies Act (Nova Scotia), the members of a ULC can convert the ULC into a limited liability company and, if desired, continue the company under the CBCA or the laws of another provincial jurisdiction. Members of a ULC may choose to change the nature of the company in circumstances where it has become profitable and there is no further need to have it taxed on a flow-through basis for U.S. tax purposes.
As a result of recent amendments to the Canada-U.S. tax treaty, the use of ULCs in some circumstances may not be as tax-effective as they have been in the past.
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