Business Law Blog

Federal corporations take notice – the federal government is amending the Canada Business Corporations Act (“CBCA”) in an effort to increase transparency regarding the ownership of Canadian corporations. Bill C-42, An Act to amend the Canada Business Corporations Act, which comes into force on January 22, 2024, will introduce several amendments to the CBCA expanding corporate reporting requirements regarding individuals with significant control in corporations created under the CBCA. The federal government is hoping these amendments will not only increase corporate transparency but also, assist authorities in preventing tax evasion and money laundering and make it easier to prosecute these crimes.

Current Requirements

Since 2019, corporations existing under the CBCA have been required to keep a registry of individuals with significant control (an “ISC”) in the corporation. An ISC is defined as someone who owns or controls a corporation. The thresholds for this requirement include individuals who:

• Own, control or direct 25% or more shares^[1] individually, jointly or in concert^[2] with one or more individuals; or
• Have control in fact over a corporation without directly owning any shares.

The current ISC registry requirements mandate CBCA corporations to record and track the following information about each ISC of the subject corporation:

• their full legal name;
• their date of birth;
• the day on which the individual became an ISC or alternatively, the day on which an individual ceased to be an ISC;
• a description of the ISC’s significant control;
• the country (or countries) where the ISC is considered a resident for tax purposes; and
• their residential address.

An ISC register needs to be updated at least once a year, and within 15 days of a corporation becoming aware of any changes affecting the register. Currently, CBCA corporations are not required to disclose their ISC registers to the public. They are however required to provide the information recorded in their ISC registers to shareholders, creditors, investigative bodies, and Corporations Canada. At this time, reporting issuers, corporations listed on a stock exchange, provincial and federal Crown Corporations and wholly-owned subsidiaries of these Crown Corporations are exempt from the requirement to keep an ISC registry. However, these exempt corporations are still required to make a filing with Corporations Canada to confirm that they are excluded.

Incoming Changes under Bill C-42

To further the goals of increasing transparency regarding who owns and controls Canadian corporations and to assist law enforcement agencies in combatting money laundering and tax evasion, the federal government has passed several changes to the CBCA in regards to the ISC registry requirements. When the new changes come into effect, CBCA corporations will not only need to file information on the ISCs of their business at certain times but also, some of this information will become available to the public.

Once the new changes are in force (on January 22, 2024), most CBCA corporations will have to start filing information regarding ISCs with Corporations Canada. They will also need to keep a copy of their ISC register with their corporate records.

New Requirements

When the new changes come into effect, the following information will need to be filed by a CBCA corporation with Corporations Canada about each of its ISCs:

• their full legal name;
• their date of birth;
• the date an individual became an ISC or ceased to be an ISC;
• a description of the ISC’s significant control;
• their residential address (optional: address for service);
• the country (or countries) of citizenship; and
• the country (or countries) where the ISC is considered a resident for tax purposes.

An ISC’s full legal name, the date they became or ceased to be an ISC, and a description of their significant control will be made public once filed. Their residential address will also be made public if they do not provide an address for service. However, an ISC’s date of birth, country (or countries) of citizenship and the country (or countries) where the ISC is considered a resident for tax purposes will not be made public.

When to File

CBCA corporations will need to file ISC information at specific times. Firstly, corporations must file this information when a corporation is incorporated, or after amalgamation or continuance to a federal jurisdiction. Further, corporations must file ISC information within 15 days of any change to the ISC information and in any case, together with a corporation’s annual return each year.

Exemptions

The new amendments to the CBCA also introduce an exemption application process for ISCs. An ISC who does not want their information to be made public can apply to the Director to have the information kept private. The Director can choose to not make the information public if the Director reasonably believes that making the information public presents or would present a serious threat to the safety of the individuals. In addition, if the Director is satisfied that the individual is incapable or the information is to be kept confidential under Section 27(8) of the Conflict of Interest Act or under a similar provision under a provincial Act, the filed information can be kept private. Further, the information of ISCs who are less than 18 years of age will not be made public.

Consequences of Non-Compliance

Lastly, the incoming amendments to the CBCA have also expanded and increased the penalties for non-compliance with the new requirements. Directors or officers of corporations that fail to properly file their ISC registries with Corporations Canada can face imprisonment for a term not exceeding five years or fines up to $1,000,000. Corporations themselves can face financial penalties of up to $1,000,000 and potential dissolution if they do not file the required information.

Conclusion

Corporations bear the responsibility for identifying their ISCs and maintaining their registries. Given the severe consequences for not filing an ISC registry when required under the new amendments, CBCA corporations will need to be mindful about regularly updating their ISC registry and abiding by the new filing requirements under Bill C-42.

_{[1] The 25% threshold applies to owners of 25% or more of all voting shares or owners of 25% or more of all outstanding shares based on fair market value.}

_{[2] E.g. two individuals who collectively own 25% or more shares and have agreed to vote together on shareholder resolutions.}