Canada Not-for-profit Corporations Act: How do I get there from here? Corporations Canada September 2011

Transcription

1 Canada Not-for-profit Corporations Act: How do I get there from here? Corporations Canada September

2 Table of Contents Context of New Act Canada Not-for-profit Corporations Act Modern Corporate Governance Provisions Modern Corporate Obligations Key Provisions Transition Requirements Canada Corporations Act Part III Conclusion Further Information 2

3 Context Currently, Part II of the Canada Corporations Act (CCA II) provides the framework for incorporation and governance of more than 19,000 diverse not-for-profit organizations, including 7800 registered charities. However, the provisions of Part II have not substantially changed since On June 23, 2009, the Canada Not-forprofit Corporations Act (NFP Act) received Royal Assent. Corporations Canada is working to bring the new NFP Act into force in the fall of 2011, after required regulations are enacted. This presentation is based on the regulations published in Part I of the Canada Gazette on February 26, Until the formal regulatory process is completed the regulations could still change. 3

4 Context NFP Act does not automatically apply to CCA II corporations. To benefit from the new NFP Act, a corporation must transition (continue) to the new Act. The CCA II rules apply until the Certificate of Continuance is issued to the corporation by Corporations Canada. The NFP Act will give corporations: a clear set of rules to govern their internal affairs; simplified processes that will mean less red tape; more flexibility to make fundamental changes, such as amalgamations, that were not permitted under the CCA; and a more objective standard for the duties and responsibilities of directors that will help reassure those who decide to be on a board of directors. 4

5 NFP Act Modern corporate governance provisions. Provisions crafted to reflect the unique characteristics of the notfor-profit sector. The Act does not: grant registered charity status under the Income Tax Act; automatically make a corporation a non-profit under the ITA; nor address any other tax-related issues. With respect to corporation s money and property, the Act: clarifies the rules for payments to directors, employees and members; and requires upfront disclosure of how assets will be distributed on liquidation. 5

6 Modern Corporate Governance Provisions Provides for the appointment of a Director to administer the Act for the government. Incorporation will be as of right: e.g., file correctly completed forms, along with the fee, and the Director appointed under the Act must issue a certificate of incorporation. Organizational changes will be possible (e.g., amalgamation, continuance, court-ordered arrangements and reorganizations, liquidation and dissolution, and revival). Corporations will have the capacity of a natural person with all the usual consequential provisions (e.g., no ultra vires principle; property owned by the corporation, not held in trust). 6

7 Modern Corporate Governance Provisions Modern provisions for directors and officers duties and liabilities: act honestly and in good faith with a view to the best interests of the corporation; exercise the care, diligence and skill of a reasonably prudent person; comply with the Act, articles, by-laws and any unanimous members agreement (UMA); due diligence defence will be available; and advancement of defence costs and director and officer (D&O) insurance for directors will be possible. Modern corporate governance provisions for corporate records, holding meetings, issuing debt obligations, etc. 7

8 Modern Corporate Obligations Reporting obligations: file an annual return every year; file any change of registered office address; report changes regarding directors; soliciting corporations to file financial statements and public accountant s report; keep articles up-to-date; and send copies of by-laws and amendments. Annual obligations: produce financial statements and have them reviewed by the public accountant; hold an annual meeting of members to elect directors, appoint a public accountant and present financial statements; and fulfil reporting obligations. 8

9 Key Features - Member Meetings NFP Act requires annual meetings of members and permits special meetings of members. To provide flexibility in holding meetings, the by-laws will set out the methods of providing notice and the manner of absentee voting. Options for method of providing notice of members meetings are: mail, courier or personal delivery; telephone or other electronic communication; notice affixed to a notice board; and publication in a newspaper if more than 250 members. Options for manner of absentee voting by members, if any, are: proxies; mailed-in ballots; and telephone or other electronic means. 9

10 Key Features - Communications with Members Flexible provisions for communications to facilitate participation of, and communication among, members. In particular: electronic communications will be fully permitted, but not mandatory; entirely electronic meetings of members will be possible; there will be various methods of giving notice of meetings of members (e.g., notice on a bulletin board or publication on a website); there will be various manners of absentee voting (mail-in ballots, proxies, electronic voting); electronic communications (e.g., sending of documents) from the corporation to its members will be possible. 10

11 Key Features - Members Rights Access to corporate records to facilitate active monitoring of the board s performance. Provision of standard corporate information: e.g., financial statements, public accountant's report, notice of meetings of members. Access to membership lists to promote members participation, with special protections to prevent abuse of the information: statutory declaration to access; Director s exemption to prevent access to all or part of a list; and explicit offence for misuse of the information. Remedies available to members to enforce their rights. 11

12 Key Features - Members Remedies Court-ordered investigations will be possible to look into alleged corporate wrongdoing. A court will also be able to issue an order to require compliance with the Act, regulations, articles, by-laws or UMA. The standard derivative action and oppression remedies will be available to members and other complainants who feel aggrieved by the corporation, its directors, etc. There will be a new faith-based defence to these remedies available for religious corporations with three criteria: i. religious corporation; ii. decision or action based on a tenet of faith; and iii. reasonable to base the decision on a tenet of faith. 12

13 Key Features - By-laws By-laws will no longer be reviewed and approved by the Minister of Industry. Corporations will still be required to file by-laws and amendments with Corporations Canada (within 12 months of approval by members). Broad discretion for organizations to adopt by-laws to fit their individual needs: streamline by-laws to focus on specific day-to-day needs; flexibility through by-laws selected to provide the best solution for a specific corporation (e.g., notice of meetings of members; absentee voting; quorum at meetings; electronic communication) within the options and requirements in the Act and regulations; and possible to override certain default rules in the NFP Act through provisions in the by-laws. 13

14 Key Features - Soliciting Corporation A soliciting corporation is typically one that receives public money in excess of $10,000 in a single financial year. Sources of public money are: donations or gifts from non-members; grants or other similar financial assistance from a government; or donations or gifts from a corporation that would meet the definition of soliciting corporation. Soliciting status lasts for 3 years. If there is another financial year over the threshold during that period, the 3-year period will restart. A corporation becomes, or ceases to be, a soliciting corporation as of the day of an annual meeting of members. The calculation for the threshold is done as of the financial year end. 14

15 Key Features - Soliciting Corporation Soliciting corporations have 5 special requirements that non-soliciting corporations do not have: must have a minimum of three directors, two of whom are not officers or employees of the corporation; must send a copy of the corporation s financial statements and public accountant s report, if any, to Corporations Canada; on dissolution, must ensure that the assets of the corporation go to a qualified donee as defined by the Income Tax Act; may not have a unanimous member agreement ; and must have specific rules for conducting its financial review. 15

16 Key Features - Financial Review Every corporation is required to have a qualified public accountant (i.e., an independent CA/CGA/CMA with a provincial licence, where required). Financial review provisions designed to balance oversight of a corporation with the cost of conducting a review. Members of small corporations can unanimously vote to not appoint a public accountant: soliciting corporation with less than $50,000 in gross annual revenues; or non-soliciting corporation with less than $1M in gross annual revenues. The Director appointed under the Act can deem a soliciting corporation to have particular gross annual revenues for the purpose of financial review if satisfied that doing so would not be prejudicial to the public interest. 16

17 Key Features - Financial Review Default and options for financial review Type of Corporation Gross Annual Revenues No Review Review Engagement Audit soliciting less than $50K optional review default review optional review soliciting between $50K and $250K not possible optional review default review soliciting more than $250K not possible not possible mandatory review non- soliciting less than $1M optional review default review optional review non- soliciting more than $1M not possible not possible mandatory review 17

18 Transition Requirements - Steps All corporations currently under Part II of the Canada Corporations Act will have three years after the new Act comes into force to complete the transition. Corporations that do not complete the transition will be dissolved by the Director appointed under the new Act. Dissolution can affect the status of a charity registered under the Income Tax Act. The transition process involves 5 steps: 1. Review Your Letters Patent and By-laws; 2. Prepare Articles; 3. Create By-laws; 4. Get Members Approval; and 5. File the Required Documents with Corporations Canada. 18

19 Transition Requirements - Step 1: Review Your Letters Patent and By-laws Review your corporation s letters patent and by-laws. A lot of the details in current by-laws will not be required because of default rules set out in the NFP Act. Main letters patent and by-law rules that are no longer required: Statement that operations may be carried on throughout Canada; Statement concerning no pecuniary gain to members; Removal of directors; Appointment of ex-officio directors; Powers of the board of directors to manage the corporation; Annual meetings of members; Appointment of auditor; Report by auditor; and Enactment, amendment or repeal of by-laws. 19

20 Transition Requirements - Step 2: Prepare Articles Create the Articles of Continuance (transition) that will be attached to the Certificate of Continuance issued by Corporations Canada. Letters patent replaced by Certificate of Continuance and attached Articles. Form Articles of Continuance (transition) will be provided by Corporations Canada and will require: Corporate name; Province or territory where the registered office is situated; Minimum and maximum number of directors or the fixed number of directors; Statement of the purpose of the corporation; Restrictions on the activities that the corporation may carry on (if any); The classes, or regional or other groups, of members that the corporation is authorized to establish; Statement regarding the distribution of property remaining on liquidation; and Any additional provisions that the corporation may want in its articles. 20

21 Transition Requirements - Step 2 Continued Corporate name may be changed as part of the transition; if so, a NUANS Name Search Report will be required. Corporation number will not change. A soliciting corporation requires at least three directors whereas a nonsoliciting corporation requires at least one director. Statement of purpose and restrictions on activities will be important for a registered charity. Additional provisions that could be considered for the articles include: non-profit clause (registered charities); remuneration of directors clause (registered charities); increase in the majority vote for members ordinary or special resolutions; a corporate name to be used outside Canada; permission for directors to fill vacancies on the board; permission for directors to appoint one or more additional directors; and restriction on circumstances where members vote separately as a class or group. 21

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23 Transition Requirements - Step 2 for Registered Charities The draft Articles of Continuance (transition) should be sent to CRA for review before being filed with Corporations Canada: CRA will check the articles merely to verify that the wording of the corporation s purposes has not changed; or if the purposes have been changed, CRA will ensure that the corporation continues to have purposes that are exclusively charitable. CRA recommends that the Additional Provisions box in the articles should include a statement that the corporation will be operated on a nonprofit basis (i.e., a non-profit clause) and that directors may not be remunerated merely for acting as directors. CRA will provide examples of acceptable statements although such statements will not be mandatory. If CRA has not approved the purposes prior to Corporations Canada issuing the Certificate of Continuance, CRA may require the corporation to amend its articles. The fee for this service is $

24 Transition Requirements - Step 3: Create By-laws By-laws will no longer be reviewed and approved by the Minister of Industry. Since the NFP Act contains many rules, there is broad discretion for organizations to adopt streamlined by-laws to fit their specific needs. There are only two mandatory by-law provisions: conditions for membership; and notice of members meetings. The following default rules may be changed in the by-laws: no restrictions on directors borrowing powers; providing annual financial statements to members by mail; memberships may only be transferred to the corporation; 5% of voting members can request a meeting of members; participation at members meeting by electronic means allowed. 24

25 Transition Requirements - Step 3 Continued Continued list of other default rules that may be addressed in the by-laws: meetings may not be held entirely by electronic means; quorum is majority of members entitled to vote at the meetings; voting is by show of hands or electronic; no absentee voting; rights of a member cease to exist on termination of membership; directors can fix reasonable remuneration of directors, officers and employees; no appointment of directors by directors even in the case of a vacancy; directors can meet at any place of their choosing; a majority of the directors or the minimum number of directors in the articles constitute a quorum; directors designate the offices, appoint officers and specify their duties; directors make, amend or repeal by-laws except for fundamental changes; and use of electronic documents is permitted. 25

26 Transition Requirements - Step 4: Get Members Approval A members meeting, called using the existing rules, is required to approve the articles and new by-laws. Articles need to be approved by two-thirds of the members. A model special resolution will be available for suggested wording of a resolution on which the members would vote. A copy of the special resolution is not sent to Corporations Canada. 26

27 Transition Requirements - Step 5: File with Corporations Canada Once articles are approved by members, these documents must be filed with Corporations Canada to obtain the Certificate of Continuance: Form Articles of Continuance (transition); Form Initial Registered Office Address and First Board of Directors; and NUANS Name Search Report, if the corporation s name is changing on transition. By-laws do not have to be filed with Corporations Canada to obtain the Certificate of Continuance, but are required to be filed within 12 months of member approval. There is no filing fee to obtain the Certificate of Continuance. All registered charities must send a copy of the Certificate of Continuance and attached articles to CRA after issuance by Corporations Canada. 27

28 Transition Requirements - Things to Consider In preparation for the transition there are a number of issues that should be considered: 1. Election of directors - directors are elected by members and ex officio and substitute directors are not permitted. 2. Membership a. membership classes - structure and voting rights; b. conditions for membership; c. quorum and methods of absentee voting, if any; and d. manners of providing notice of members meetings. 3. Accounting records - records have to be sufficient to be reviewable by a public accountant. 4. Statement of purpose - if a registered charity, are the objects out of date and would they be acceptable to CRA? 5. Soliciting corporation rules - will the corporation be considered soliciting or not, or will it move between soliciting and non-soliciting? 28

29 CCA III Corporations Part III of the Canada Corporations Act (CCA III) applies to certain corporations without shares created by Special Acts of Parliament. Part 19 of the NFP Act will replace CCA III although the requirements will not be substantially different. Transition to Part 19 will be automatic when the NFP Act comes into force. Part 19 provisions\obligations include: capacity of a natural person; holding of annual meetings and filing of annual returns; allow the Director to change the corporate name; continue under the NFP Act; provide for the liquidation and dissolution of the corporation; and repeal of obsolete Special Acts used to create certain corporations in the past. 29

30 Conclusion Corporations Canada is working to bring the new NFP Act into force in the fall of Corporations will have three years from the in-force date to continue/transition to the new Act. As explained above, there are preliminary issues that corporations can start to consider. 30

31 Further Information Information on the new NFP Act, its regulations, policies, forms, etc will be released on Corporations Canada s website: For registered charities, information will also be available on CRA s website: Information provided by Corporations Canada will include: Transition Guide for Federal Not-for-profit Corporations; Model by-laws and articles; Handbook for Federal Not-for-profit Corporations; Background paper on the NFP Act; Reporting Obligations under the Canada Not-for-profit Corporations Act; and Policies on most applications under the Act (e.g., incorporation, revival and dissolution). 31

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