Changes to Corporate Transparency Rules for CBCA Corporations on the Horizon

The federal government is amending the requirements of the Canada Business Corporations Act (“CBCA”) relating to the beneficial ownership registry most private federal corporations are required to maintain (the “CBCA Amendments”). Most notably, the CBCA Amendments expand the reporting requirements on private federal corporations, require that certain information from the registry be made publicly accessible, and substantially increase the penalties for non-compliance. The new reporting requirements will come into effect on January 22, 2024.

Background

Since June 2019, most private CBCA corporations have been required to maintain a register (an “ISC Register”) of certain information about individuals that, directly or indirectly, have “significant control” over the corporation (the “ISC Rules”). An “individual with significant control” (an “ISC”) for purposes of the ISC Rules includes (i) an individual who directly or indirectly owns or controls 25% or more of a corporation’s shares (measured by voting power or fair market value), and (ii) an individual who has “direct or indirect influence that, if exercised, would result in control-in-fact of the corporation”. See our January 2019 Update, New CBCA Record Keeping Requirements on the Horizon).

The ISC Rules currently only require corporations to disclose information in an ISC Register to (i) certain investigative bodies (e.g., a police force or the Canada Revenue Agency), (ii) the CBCA Director upon its request, and (iii) shareholders and creditors of a corporation, if the request for information is for certain limited purposes relating to the corporation’s affairs. Currently, none of the information in the ISC Register is publicly accessible.

CBCA Amendments

Reporting Requirements

The CBCA Amendments require that all of the information in the ISC Register be delivered to the CBCA Director on an annual basis. It must also be provided within 15 days of any change in such information, and following the incorporation, amalgamation or continuance of the corporation.

Public Accessibility

More significantly, the CBCA Amendments require the CBCA Director to make certain information from the ISC Register publicly accessible, including:

• the name of each ISC;
• each ISC’s address for service (if provided to the corporation) or otherwise the individual’s residential address;
• the day on which each ISC became or ceased to be an ISC;
• a description of how each ISC exercises significant control; and
• any other information prescribed by the CBCA regulations (which have yet to be published).

This information is expected to be made available on Corporations Canada’s website upon (or shortly following) the CBCA Amendments coming into effect.  Certain other information in an ISC Register will not be made public, including an ISC’s date of birth, citizenship and jurisdiction(s) in which the ISC is resident for tax purposes.  

There are only limited circumstances in which an ISC can seek an exemption from the public disclosure requirements (e.g., where disclosure of such information would present a serious threat to the individual’s safety).

Penalties

The CBCA Amendments significantly increase the maximum criminal and monetary penalties to corporations and their directors, officers and shareholders for failing to comply with the ISC Rules.  For example, directors, officers and shareholders can now be subject to fines of up to $1 million and/or up to five years’ imprisonment for certain failures to comply with the ISC Rules. A corporation that fails to comply with the ISC Rules may be subject to a fine of up to $100,000 and can also be dissolved in certain circumstances. Currently, the maximum penalties that may be imposed are $5,000 for corporations and $200,000 and/or six months’ imprisonment for individuals.

Implications for Non-CBCA Corporations

While the corporate law of certain Canadian jurisdictions already requires private provincial corporations to maintain beneficial ownership registers similar to the ISC Register, these registers are generally not publicly accessible (notable exceptions include Quebec’s recent adoption of a public register and British Columbia’s proposal to introduce one by 2025).  It remains to be seen how other jurisdictions (including Ontario) respond in the wake of the CBCA Amendments.

Looking Forward

The CBCA Amendments represent a meaningful effort by the federal government to enhance corporate transparency and prevent tax evasion, money laundering, financing of terrorism and other unlawful activities. Given the substantial penalties for non-compliance, it is important that CBCA corporations subject to these rules have appropriate procedures in place to ensure compliance with these new requirements before they come into force.

To discuss the CBCA Amendments or the ISC Rules, please contact any member of our Capital Markets Group or Mergers and Acquisitions Group.