Chapter 5 The creation of the corporation

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1 Chapter 5 The creation of the corporation 1. Introduction This chapter is intended to provide a basic overview of the major issues facing solicitors retained to incorporate a business. The focus will be on the Business Corporations Act (Ontario) (OBCA) The corresponding sections of the Canada Business Corporations Act (CBCA) are noted in some, but not all cases, and are substantially in accord with the OBCA sections. That being said, solicitors should take care to note any subtle differences in the wording of the respective sections. 2. Where to incorporate Having chosen the corporation as the appropriate form of business organization, one must consider in which jurisdiction to incorporate. Generally, an Ontario solicitor will incorporate a business provincially, under the OBCA, or federally, under the CBCA. In some cases, incorporation in another jurisdiction may be appropriate, for example to avoid extra-provincial licensing requirements The following considerations may be relevant in advising where to incorporate. 2.1 Ability to carry on business in different jurisdictions A federally incorporated corporation has the right to carry on business and use its name in all provinces. By contrast, a corporation incorporated under the OBCA can only carry on business in Ontario, unless it obtains a license under the extraprovincial licensing statute of another province. Unlike the situation with a CBCA corporation, this registration or licence may not be granted if the name of the Ontario corporation is not acceptable in the province where application for the registration of licence is being made. Under the Ontario Extra-Provincial Corporations Act, a federal corporation is entitled to carry on business in Ontario without an extra-provincial licence. 2.2 Filing and other requirements All provinces regulate the activities of federal corporations by virtue of laws of general application, requiring registration and/or returns and/or fees for every corporation doing business in that province. In addition to the filing requirements contained in the CBCA, a federal corporation having its registered office or carrying on business in Ontario, must file an initial notice setting out the prescribed information as of the date of filing, and from time to time in relation to certain changes in the information contained in the initial notice with the Ministry of Government Services pursuant to ss. 3 and 4 of the Corporations Information Act. Furthermore, corporations must comply with s. 2 of the Business Names Act, which states that no corporation shall carry on business or identify itself to the public under a name other than its corporate name unless the name is registered. 2.3 Directors meetings Except where the articles or the by-laws of the corporation provide otherwise, the majority of the meetings of the directors of an Ontario corporation in any year must be held in Canada, pursuant to s. 126(2) of the OBCA. There is no similar CBCA requirement. 2.4 Prestige of federal incorporation Where the corporation will be carrying on business outside of Canada, it may be preferable to incorporate federally, as foreign parties may be unfamiliar with Canada s federal structure and the powers of the provinces in matters of commerce. 55

2 CHAPTER 5 BUSINESS LAW 3. Incorporation procedure Incorporation under both the OBCA and CBCA is available as a matter of right and is accomplished by filing articles of incorporation in the form prescribed by the regulations with the appropriate government department, together with the required supporting material and fees. On receipt, a Certificate of Incorporation shall be issued (OBCA, s. 6; CBCA, s. 8). The corporation comes into existence on the date shown in the Certificate of Incorporation (OBCA, s. 7; CBCA, s. 9)). Preparation of the articles is reasonably straightforward. Subsection 5(1) of the OBCA simply provides that the articles shall follow the prescribed form and set out the prescribed information. The corresponding provisions of the CBCA are found in ss. 6 to 9 inclusive. Under the CBCA, in addition to the articles (Form 1), a Notice of Registered Office (Form 3) and Notice of Directors (Form 6) must be filed for incorporation (CBCA, ss. 19(2), 106(1)). 3.1 Name Finding an acceptable name can be a time consuming step in incorporating. The use of a number name will expedite incorporation and may be acceptable to a client where the corporation will not be carrying on business in the public domain, or where a corporation is needed without there being sufficient time to be satisfied as to whether the proposed name is legally acceptable. Incorporation is permitted under a number name with the number determined by the Director (OBCA, s. 8(2); CBCA s. 11(2)). Depending on the jurisdiction of incorporation, the words Ontario or Canada will be included in the number name. Under s. 10(1) of the OBCA and s. 10(1) of the CBCA, the word Limited, Limitée, Incorporated, Incorporée or Corporation or the corresponding abbreviations, Ltd., Ltée, Inc., Corp. and, as further provided under the CBCA, Société par actions de régime fédéral or S.A.R.F. shall be part, in addition to any use in a descriptive or figurative sense, of the name of every corporation. In addition, s. 10(1.1) of the CBCA permits the use of the expression Société commerciale canadienne or its abbreviation S.C.C., in the name of a company incorporated before the day on which the subsection came into force. The onus of ensuring that the proposed corporate name complies with Ontario law is on the applicant (or the applicant s solicitor). When incorporating, other than with a number name, the incorporator must submit an original Ontario biased or weighted computer printed search report from the automated name search system (NUANS) maintained by Industry Canada, dated no more than 90 days prior to the date of submission, together with any appropriate consents (OBCA, Regulation 62, s. 18(1)). Under both the OBCA and the CBCA, the proposed corporate name cannot be the same as or similar to that of any known entity, if the use of that name would be likely to deceive or be deceptively misdescriptive (OBCA, s. 9; CBCA, s. 12(1)). As the responsibility for selection of a name, particularly for an OBCA corporation, is placed upon the applicant, and because Industry Canada will only consider the availability of the name to a limited extent, great care must be taken to ensure compliance with the statutory provisions. In respect of Ontario corporations, OBCA Regulation 62 sets out a number of rules governing the selection of names pursuant to the Act including 1) when the use of a name would be likely to deceive; 2) matters the Director may consider when determining whether a proposed name is contrary to s. 9 of the Act; 3) circumstances in which a corporation may have a name similar to that of another corporate entity; 4) certain words that can not be used in a corporate name, including but not limited to the following: a) words that are obscene, scandalous, immoral or contrary to public policy; b) amalgamated unless the corporation is the result of an amalgamation; c) architect, architectural, engineer, engineering or any variation thereof 56 LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

3 THE CREATION OF THE CORPORATION CHAPTER 5 that suggests the practice of the profession, except with the written consent of the appropriate body; d) association, condominium, cooperative, council ; and e) college, institute or university if it leads to the inference that the corporation is one of these institutions; 5) certain words that suggest a connection to any level of government, a university or association of professionals or financial intermediary, without the consent of the appropriate party; and 6) words or expressions that connote a connection to a political party or leader. Part 2 of the Canada Business Corporations Regulations, 2001 provides certain similar rules governing the selection of an appropriate name for a federal corporation. When incorporating, the following should be noted: Depending upon the name, two computer searches made on the same day for the same name may reveal different results. This is because some names are characterized as weak names in that they are over-used. Examples of weak words include Maple Leaf, Imperial, National, United, General, Canadian and Associated. The presence or absence of hyphens in a name or periods between initials may result in different names being shown on different computer searches. Although trademarks will be shown in the computer printout, partnership names, sole proprietorships, business or style names and many foreign names will not necessarily appear in the computer printout. Therefore, the following steps should be taken by the solicitor: Obtain explicit instructions as to the desired name and any alternatives in order of preference. Determine whether the name conforms to the applicable statutory provisions. A review should be made of the telephone book, Might s Directory or any other pertinent directories that may contain similar names. Searches should be conducted under the Business Names Act for business names or styles to determine if there are any other similar names registered. (Although registrations under this Act are now generally included in the computer printout obtained from Industry Canada, there is a time lag between the date of the registration and the date the registration is recorded in the NUANS automated computer name search system.) The solicitor should obtain a computer search of the name and, if the name is a weak name, the solicitor should consider whether it would be desirable to submit variations of the name or, perhaps, to obtain a second computer search. A corporation can change its name by filing articles of amendment (OBCA, ss. 168(1)(a) and 168(4); CBCA, ss. 173(1)(a) and 173(3)). 3.2 Address Under the OBCA, a corporation must at all times have a registered office at the location specified in the articles (s. 14(1)). The location of the registered office can be changed by a resolution of the board of directors in the case of a change within the same municipality or geographic township (s. 14(3)), or by a special resolution of the shareholders in the case of a different municipality or geographic township (s. 14(4)). 3.3 Directors Both the OBCA and CBCA permit one director to manage and supervise the affairs of the corporation, unless the corporation is an offering corporation in which case it must have at least three directors (OBCA, s. 115(2); CBCA, s. 102(2)). Directors must be individuals who are at least 18 years of age, sane and not bankrupt (OBCA, s. 118(1); CBCA, s. 105(1)). The OBCA and CBCA contain provisions respecting the duties and powers of directors (ss. 115 and 102, respectively), prescribing their standard of care (OBCA, s. 134; CBCA s. 122) and their liabilities (OBCA, ss. 130, 131; CBCA, ss. 118, 119). Under the OBCA, at least one-third of the directors of an offering corporation must not be officers or LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION 57

4 CHAPTER 5 BUSINESS LAW employees of the corporation or any of its affiliates (OBCA, s. 115(3)). Twenty-five percent of the directors of a corporation governed by the OBCA, other than a non-resident corporation, shall be resident Canadians but, where a corporation has less than four directors, at least one director shall be a resident Canadian (OBCA, s. 118(3)). A corporation may have a fixed or variable number of directors, but may only change the number or minimum or maximum number of directors by articles of amendment. 3.4 Restrictions The OBCA and CBCA provide that a corporation has the capacity and rights, powers and privileges of a natural person. Each Act also contains a provision giving the applicants for incorporation, directors and shareholders the right to restrict the nature of the corporation s business (OBCA, s. 17(2); CBCA, s. 16(2)). 3.5 Share capital Where a corporation has only one class of shares, the rights of the holders are equal in all respects, and include the right to vote at any meeting of shareholders of the corporation, and to receive the remaining property of the corporation on dissolution (OBCA, s. 22(3); CBCA, s. 24(3)). In addition, the CBCA provides, as a basic right, the right to receive dividends when declared. A corporation s articles may provide for more than one class of shares, with the rights, privileges, restrictions and conditions attaching to the shares of each class set out therein. In such a case, each of the rights set out above must be attached to at least one class of shares, but all of the rights are not required to be attached to any one class (OBCA, s. 22(4)(b); CBCA, s. 24(4)(b)). In certain circumstances both the OBCA and CBCA grant voting rights to non-voting shares (OBCA, s. 170(3) and CBCA, s. 176(5) - variation of shareholder rights; OBCA, s. 176(3) and CBCA, s. 183(3) - amalgamations; OBCA, s. 182(4) - arrangements; OBCA, s. 184(6) and CBCA, s. 189(6) sale or lease of all or substantially all of the corporation s assets). The number of shares of each class which a corporation may issue will be unlimited unless a maximum number is specified in the articles. Neither jurisdiction restricts the manner in which the shares of any class or series may be designated or, except as outlined above, attaches mandatory rights or conditions to any class of shares. A corporation must maintain a separate stated capital account for each class and series of shares it issues (OBCA, s. 24(1); CBCA, s. 26(1)). Upon the issuance of any share, the full amount of the consideration received must be added to the appropriate stated capital account (OBCA, s. 24(2); CBCA, s. 26(2)). There is an exception for nonarm s length transactions, allowing a corporation to allocate a portion of the amount of any consideration received for an issued share, in appropriate circumstances, to a contributed surplus account (OBCA, s. 24(3); CBCA, s. 26(3)). Both the OBCA and CBCA, in ss. 23 and 25 respectively, require that the full consideration for the shares must be received in the form of money, property or past services before the shares are issued. The articles may authorize the issuance of a class of shares in one or more series and may authorize the directors to fix the number of shares in, and to determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series (OBCA, s. 25(1); CBCA, s. 27(1)). 3.6 Share transfer restrictions If the corporation s securities are not to be widely offered or distributed to the public, restrictions on the transferability of such securities requiring approval of the board of directors or the shareholders, should be included in the articles in order to allow the corporation to rely on the private issuer exemption contained in s. 2.4 of National Instrument Prospectus and Registration Exemptions. 3.7 Additional provisions Anything that could be the subject matter of a bylaw may be put in the articles of an Ontario corporation. It has been customary to include in the articles of Ontario and federal corporations, 58 LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

5 THE CREATION OF THE CORPORATION CHAPTER 5 borrowing powers and the powers to mortgage, charge and hypothecate property by reason of the provisions of An Act respecting the special powers of legal persons of Quebec, which permits a corporation, when so authorized by its charter, to mortgage property in Quebec. Concern has been expressed that, without an appropriate clause in the articles, a company would be precluded from charging its Quebec property. Other matters that might be included in the articles of an OBCA corporation are the following: pre-emptive rights of shareholders (s. 26); requirement of greater majority to perform any act by directors or shareholders (s. 5(4)); cumulative voting for election of directors (s. 120); limitation on the right to purchase shares (ss. 30 and 31); and lien on shares of shareholders indebted to the corporations (s. 40(1)). 3.8 Approvals Certain applications for incorporation may require approval by other government departments and/or administrative agencies before they are filed to ensure that requisite licences will be granted. Examples include real estate brokers and insurance agents. Certain statutory requirements are relevant, for example, in respect of the incorporation of professional corporations. 3.9 Filing Because incorporation is a matter of right, on receipt of the articles of incorporation, a certificate of the incorporating authority will be issued, thereby bringing the corporation into existence as of the date set out in the certificate (OBCA, ss. 7 and 273(3)). A very cursory review will be made of the articles in order to ensure that, for example, the proper statutory form has been used and that it is properly executed. The solicitor filing is responsible to ensure the correctness of the content of the articles filed. 4. Organization Both the OBCA and CBCA require that certain corporate records must be kept, including: a copy of the articles; by-laws and all amendments thereto; a copy of any unanimous shareholder agreement known to the directors; minutes of meetings and resolutions of shareholders; a register of directors; a securities register; adequate accounting records; records containing the minutes of meetings and resolutions of the directors and any committee thereof; and a register of transfers (OBCA, ss. 139, 140, 141; CBCA, ss. 20, 22, 50(1). 4.1 By-laws Although not required by legislation, a corporation s by-laws regulate its business and affairs including the procedures for meetings of directors and shareholders; signing authority; directors remuneration; and indemnification. To be effective, the by-laws, and any amendments to or repealing of, must first be approved by the directors, then passed by the shareholders at their next meeting (OBCA, s. 116(2)). It is normal practice to prepare, as By-Law Number 1 of the corporation, a general by-law dealing with meetings, notice, quorum, officers, proxies, execution of documents and other matters of a continuing nature. The purpose of this general bylaw is to fix the rules governing the operation of the corporation, to the extent permitted by the governing statute and articles, and to take advantage of the flexibility permitted. It may also constitute a general rule book for the client and for this purpose, may reiterate provisions in the governing statute or articles. By-laws may contain not only general by-law matters but virtually any matter of importance to a corporation. While there are precedents in a number of form books and manuals, and some legal stationers have their own standard forms, as is the case with all precedents, the content of the standard forms should be reviewed with the client to ensure that the incorporating directors and shareholders are not adopting unnecessary or unwanted procedures. LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION 59

6 CHAPTER 5 BUSINESS LAW 4.2 Resolutions Other business of a corporation is carried out by way of resolution passed as required by a simple majority of the directors, e.g., the election of the president; appointment of officers; approval of financial statements; allotment and issue of shares; and declaration of dividends; or by a simple majority of shareholders, e.g., election of directors and the appointment of auditors. In some instances, including amendment of the articles, amalgamation, or the sale of all or substantially all of the assets of a corporation, a special resolution is required. A special resolution is a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders who voted in respect of that resolution. There are also resolutions that require unanimous written approval of shareholders, including those not otherwise entitled to vote (e.g., dispensing with auditors; OBCA, s. 148). 4.3 Written resolution in lieu of meetings The directors or shareholders may, in lieu of a meeting, pass a resolution with the consent in writing of all of the directors or all of the shareholders entitled to vote at the meeting (OBCA, ss. 129(1), 104(1); CBCA, ss. 117, 142) and such resolutions have the same effect as if passed at a duly constituted meeting. 4.4 Officers and agents The officers and agents of the corporation act for the corporation on the authority given to them by the applicable statute, articles, by-laws or by resolution of the directors and in the absence of stated authority, by delegation or instructions from the president or chief executive officer who is often given broad powers in the by-laws to manage the day-to-day affairs of the corporation. However, the authority to declare dividends, the right to redeem shares and the amending of corporate by-laws, may not be delegated to officers or agents or even to a committee of directors (OBCA, ss. 127(3), 133). 4.5 Seal Corporations governed by the OBCA and the CBCA may have a seal (for use where a seal is required by law or custom), but neither statute requires a seal (OBCA, s. 13; CBCA, s. 23). 4.6 First meeting directors Organizational proceedings are usually carried out by resolutions in writing. There are cases, however, where a series of meetings will be held. If such meetings are to be held, the directors named in the articles or in the notice of directors (in the case of a federal corporation) should waive notice (OBCA, s. 264; CBCA, s. 255) and pass the resolutions necessary to enact the by-laws; adopt the forms of share certificates; allot and authorize the issuance of shares; appoint officers; and adopt any pre-incorporation contracts. A majority of the number of directors or the minimum number of directors required by the articles constitutes a quorum at any meeting of the directors, but in no case can the quorum be less than 2/5 of the number of directors or minimum number of directors (OBCA, s. 126(3)). Further, a meeting of directors will not be properly constituted unless 25% of those present are resident Canadians in the case of a CBCA Corporation (CBCA, s. 114(3)). There is no similar residency provision in the OBCA. 4.7 Second meeting shareholders Once the initial directors meeting has been held, notice should then be given to, or written waiver of notice received from, each of the shareholders, directors and the auditor (if appointed) (OBCA, ss. 96, 98, 151(1)) of a meeting of shareholders called in accordance with the by-laws to confirm the by-laws passed earlier by the directors; 60 LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

7 THE CREATION OF THE CORPORATION CHAPTER 5 appoint the auditor or if pursuant to the OBCA, s. 148, no auditor is required, appoint accountants; and appoint the directors for the remaining fiscal year. 5. Post-organization and share certificates The records and registers required under ss. 140 and 141 of the OBCA, should then be completed. If the organizational proceedings result in a change of directors for an Ontario corporation, Form l under the Corporations Information Act must be submitted within 15 days of the change. Even if there is no such change, within 60 days of incorporation under the OBCA, a return must be filed pursuant to s. 2 of the Corporations Information Act setting out required information about the corporation. A CBCA corporation carrying on business in Ontario must also make filings under this Act (s. 3(1)). Where a corporation is in default of a requirement under the Corporations Information Act to file a return or notice, or has unpaid fees or penalties, the corporation cannot maintain a proceeding in an Ontario court without leave of the court (s. 18(1)). Further, using Form 6 - Notice of Directors, a CBCA corporation must also advise Industry Canada of a change in directors within 15 days. All such filings are available for public inspection. Banking documents in the form required by the corporation s bank should be completed and, together with certified copies of the appropriate resolutions adopted, filed with the branch of the bank in which the company will maintain its accounts. Every shareholder is entitled to a share certificate (OBCA, ss. 54, 55, 56). This certificate is evidence of a number of shares of that class or series held by the shareholder and registered in his or her name in the shareholder ledger kept by the corporation. The auditor or accountant, as the case may be, should be given notice of his or her appointment (OBCA, s. 149(9)) and should be advised of the date and jurisdiction of incorporation; names of directors and officers, authorized and issued share capital; fiscal year; and location of head office where records are kept. Once the corporation is organized, directors will often meet regularly to receive reports from employees (who may or may not be directors or officers), to consider the corporation s financial situation and generally to supervise and plan the management of its business and affairs. Even when directors meet irregularly, it is customary for them to meet once a year prior to the annual shareholder meeting to approve the corporation s financial statements so that they can be presented to the shareholders. The shareholders would then meet to receive the financial statements, elect new directors and appoint auditors (if required) for the ensuing year. Thereafter, the newly-elected directors would meet to elect the officers. Subject to s. 104(1) of the OBCA, s. 94 requires the directors of a corporation to call an annual meeting of the shareholders not later than 18 months after the date the corporation comes into existence and subsequently not later than 15 months after the holding of the last preceding annual meeting. 6. Special situations A number of special situations are regulated. 6.1 Continuing under another jurisdiction Both the OBCA and CBCA contemplate two methods of continuance, import and export. An importing continuance is used when a corporation not governed by the statute wishes to be governed by the statute. By contrast, exporting is when a corporation wishes no longer to be governed by the statute and instead be governed by the corporate laws of some other jurisdiction. Generally, the reason for wishing to import or export would be to amalgamate with another corporation not governed by the same legislation, as statutory amalgamations contemplate that the parties to the amalgamation are governed by the same legislation. While importing is relatively simple (OBCA, s. 180), exporting is not as straightforward because the proposed continuance cannot adversely affect creditors or shareholders of the corporation; LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION 61

8 CHAPTER 5 BUSINESS LAW the corporation may not be continued under the laws of another jurisdiction unless the laws of that jurisdiction provide that the property, liabilities and obligations of the corporation would continue unaffected; and notice of the proposal to export must be given to shareholders and this notice must state that any dissenting shareholder is entitled to be paid the fair value (which may be in excess of the market value) of his shares. A shareholder may dissent if a corporation resolves to be continued under the laws of another jurisdiction. The mere possibility of a right of appraisal may discourage a proposed export (OBCA, s ). 6.2 Amalgamations Pursuant to ss. 174 through 179, two or more corporations governed by the OBCA may amalgamate and continue as one corporation. Upon the articles of amalgamation becoming effective, they are deemed to be the articles of incorporation of the amalgamated corporation and the certificate of amalgamation is deemed to be the certificate of incorporation of the amalgamated corporation (OBCA, s. 179(d)). It is important to note that the amalgamating corporations continue and, therefore, are subject to the same liabilities and, except for intercorporate shareholdings and book debts, retain the same assets as prior to the amalgamation. 62 LAW SOCIETY OF UPPER CANADA: NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION

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