Upcoming Changes to Ontario and Federal Corporate Transparency Requirements

As noted in our May 2019 Blakes Bulletin: CBCA Amendments: New Register to Track Individuals with Significant Control, starting in June 2019 private corporations governed by the Canada Business Corporations Act (CBCA) have been required to create and maintain a register that identifies “individuals with significant control” over the corporation (ISC Register). 

The introduction of this requirement was the first Canadian step in a broader push towards greater transparency of beneficial ownership of corporations, which has become an area of ongoing international concern in relation to illegal activities and tax evasion. Since those initial amendments to the CBCA, a number of Canadian provinces have introduced similar requirements for provincially-incorporated corporations. 

Starting on January 1, 2023, Ontario will join the list of provinces requiring private business corporations to maintain an ISC Register.

In addition, upcoming amendments to the CBCA are set to augment the ISC Register obligations for private federal business corporations by requiring them to file ISC Register information with Corporations Canada on an annual basis and following any changes to the information.

ONTARIO BUSINESS CORPORATIONS

Effective January 1, 2023, Ontario’s Business Corporations Act (OBCA) will be amended to require that private corporations governed by that statute create and maintain an ISC Register.  Ontario’s ISC Register requirements are modelled on, and largely similar to, the current CBCA regime.

Similar to the CBCA, the OBCA will provide that “individuals with significant control” over a corporation include:

a. an individual who has any of the following interests or rights (or any combination of them) in respect of a “significant number of shares” of the corporation:

i. the individual is the registered holder of the shares,
ii. the individual is a beneficial owner of the shares,
iii. the individual has direct or indirect control or direction over the shares;

b. an individual who has any direct or indirect influence that, if exercised, would result in control in fact of the corporation; or

c. an individual to whom prescribed circumstances apply (as may be set out in regulations). 

For purposes of determining whether an individual falls within the above definition, a “significant number of shares” will be defined as any number of shares that either (i) carry 25% or more of the voting rights attached to all of the corporation’s outstanding voting shares, or (ii) represent 25% or more of the corporation’s outstanding shares by fair market value.

Under the OBCA amendments, joint ownership or control of a significant number of shares will also be taken into account in determining whether two or more individuals are each considered to be an individual with significant control over the corporation.

The ISC Register will be required to be kept at the corporation’s registered office or at another place in Ontario designated by the directors, and must contain certain information in respect of all individuals with significant control over the corporation, including:

• Name, date of birth and last known address

• Jurisdiction of residence for tax purposes

• Date(s) on which the individual became and ceased to be an individual with significant control

• Description of how each individual is an individual with significant control, including, as applicable, a description of their interests and rights in respect of shares of the corporation

• Any other prescribed information (as may be set out regulations)

• A description of each step taken by the corporation to ensure that it has identified all such individuals

As with the current CBCA regime, the ISC Register for OBCA corporations will not be publicly available. However, disclosure of a corporation’s ISC Register may be requested for law enforcement, tax and regulatory purposes.

OBCA corporations will be under an obligation to update the ISC Register at least annually, as well as within 15 days of becoming aware of any new or updated information required to be reflected in the ISC Register.

The Regulations under the OBCA may also be amended in order to prescribe certain matters relevant to the collection, updating and disclosure of ISC Register information.

Failure to comply with the OBCA’s ISC Register requirements can result in a director, officer, or shareholder being held personally liable for a fine of up to C$200,000, imprisonment for a term of up to six months, or both.

FEDERAL BUSINESS CORPORATIONS

With the passage of the Budget Implementation Act, 2022, No. 1 in June of this year, additional amendments to the CBCA will be made to expand the federal corporate transparency measures.  While these amendments are not yet in force, once in effect they will include the requirement for private CBCA corporations to send to Corporations Canada information contained in the corporation’s ISC Register on an annual basis, as well as an ongoing requirement to update Corporations Canada within 15 days after the corporation records a change in the information in its ISC Register. This requirement to file information with Corporations Canada is in addition to the existing obligation to maintain an ISC Register as part of a CBCA corporation’s records.

The amendments will also stipulate that Corporations Canada may provide all or part of the ISC Register information received from a corporation to an investigative body, the Financial Transactions and Reports Analysis Centre of Canada or any prescribed entity.  

The amendments to the CBCA contained in the Budget Implementation Act, 2022, No. 1 will come into force on a future date to be fixed by order of the Governor in Council.

Although ISC Register information will still not be generally available to the public following the implementation of these amendments, the requirement to file such information with Corporations Canada is another step towards the federal government’s objective of implementing a public and searchable beneficial ownership registry, which the government has now said will be accessible before the end of 2023. The 2022 federal budget also indicated that the public registry, when launched, will be scalable to allow access to the beneficial ownership data held by any provinces and territories that agree to participate in a national registry.

For further information, please reach out to a member of our Corporate & Commercial group or your usual Blakes contact at any time.