Effective June 13, 2019, corporations subject to the Canada Business Corporations Act (CBCA) must maintain and provide access to a register of individuals who, directly or indirectly, have ‘significant control’ over the corporation. This new requirement is in addition to the existing requirement for corporations to maintain a register showing the names of each person holding shares of the corporation.
Private Corporations
This new requirement applies only to private corporations regulated under the CBCA. Reporting issuers and corporations listed on a designated stock exchange are exempt from the new recordkeeping requirements as they are already subject to their own separate recordkeeping and reporting requirements.
Individual with Significant Control
An individual is considered to have significant control over a corporation where either:
(a) the individual is the registered holder of, the beneficial owner of, or has direct or indirect control or direction over a “significant number of shares of the corporation”, which is defined as when the individual has:
- 25% or more of the voting rights in the corporation; or
- 25% or more of the fair market value of the corporation.
(b) has any direct or indirect influence that, if exercised, would result in control in fact of the corporation.
Two or more individuals will each be considered to be an individual with significant control if they are jointly the registered holders of, the beneficial owners of, or have direct or indirect control or direction over a “significant number of shares of the corporation”.
The Register
The new register is required to contain the following information:
(a) the names, dates of birth and latest known address of each individual with significant control;
(b) the jurisdiction of residence for tax purposes of each individual with significant control;
(c) the day on which each individual became or ceased to be an individual with significant control;
(d) a description of how each individual is an individual with significant control over the corporation, including, as applicable, a description of their interests and rights in respect of shares of the corporation;
(e) certain other information prescribed in the future; and
(f) a description of each step taken to comply with the corporation’s obligation to update the information each financial year of the corporation.
The corporation is required to take reasonable steps annually to ensure that it has identified all individuals with significant control over the corporation and that the information in the register is accurate, complete and up-to-date.
Access to Register
The register will not be available to the public. However, shareholders and creditors of the corporation, after complying with applicable requirements, can require the corporation to permit them access to the register for matters relating to the corporation’s affairs.
Consequences of Non-Compliance
A corporation that fails to prepare and maintain this register, without a reasonable cause, may be liable to a fine of up to $5,000 and its directors and officers may be liable to a fine of up to $200,000 and/or to imprisonment for a term of up to six months.
A shareholder of a corporation that refuses to provide information required by a corporation to comply with its record‑keeping obligations in a timely manner may also be liable to a fine of up to $200,000 and/or to imprisonment for a term not exceeding six months.
Conclusion
Affected private corporations that are subject to the CBCA should ensure they prepare and maintain a register of individuals with significant control which complies with this new requirement. A lawyer can help ensure this requirement is properly met. Contact us if you need a referral to a lawyer.
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