As part of the federal government’s anti-money laundering and counter-terrorism initiatives, the federal government is implementing several changes to the Canadian Business Corporations Act (“CBCA”) through Bill C-86. These changes come into force on June 13, 2019.

By this date, all non-distributing, federally incorporated corporations will need to have a “New Register” completed which contains the following information for each individual with significant control over the corporation:

  1. Their name, date of birth, and last known address;
  2. Their jurisdiction of residence for tax purposes;
  3. The date on which the individual became or ceased to be an individual with significant control;
  4. A description of the basis or relationship that resulted in an individual having significant control over the corporation, including the number of shares of the company that they exert direct or indirect control over; and
  5. Any other information that is to be prescribed by regulation.

The corporation will also need to show the steps they took to ascertain the information for the New Register.

 An individual with significant control is an individual:

  1. Who is the registered or beneficial owner of, or has direct or indirect control or direction over a significant number of shares, meaning, any number of shares that:
    1. carry 25% or more of the voting rights attached to all of the corporation’s outstanding voting shares, or
    2. is equal to 25% or more of all of the corporation’s outstanding shares measured by fair market value; or
  2. Who has any direct or indirect influence that, if exercised, would result in control in fact of the corporation; or
  3. To whom prescribed circumstances apply. These prescribed circumstances will be determined by regulation.

Control in fact can be an ambiguous concept, as there is no current definition in the legislation. Influence of various types and the degree of direct or indirect influence that is exercised by a person, whether alone or in concert with another person, usually indicates control in fact.  

Some common factors that may indicate control in fact are:

  • The power to make or influence strategic decisions;
  • The existence of veto rights;
  • The number of options or warrants held; or
  • The existence of director nomination powers.

The New Register must be updated within 15 days of the date that information regarding individuals with significant control becomes known to the corporation, and on a yearly basis to ensure that the information is accurate and up to date. This personal information contained within the New Register must be destroyed six years from the date of an individual no longer qualifying as an individual with significant control. 

It is important to note that the New Register is not intended to be a public document or report and the amendments do not require the beneficial ownership of non-distributing corporations to be filed with the Registry.

Although it is not a public document, the information in the New Register can be requested by the Director of the Federal Corporate Registry, shareholders, and creditors.  Shareholders and creditors can only use information from the New Register in connection with the following:

  • Efforts to influence shareholder voting;
  • To acquire securities of the corporation; or
  • Any other matter relating to the affairs of the corporation.

Non-compliance of these amendments can carry a penalty of a fine up to $200,000 and/or six months imprisonment.

If you are uncertain whether an individual qualifies for significant control or are in need of assistance in completing and maintaining your New Register, please contact our office.

Ronald L. Miller, Q.C. and Justine A. Shenher

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