Non-public CBCA corporations must begin tracking controlling shareholders

Non-public corporations governed by the Canada Business Corporations Act (the CBCA) will soon have to establish a securities register detailing all individuals with significant control over the corporation. The new regulations under Bill C‑86 Budget Implementation Act, 2018, No. 2 are expected to come into effect on June 13, 2019. CBCA corporations should take steps to ensure correct records and documentation are in place ahead of the regulations’ anticipated effective date.

Meaning of significant control

The new share register requirements pertain to all individual shareholders, registered or beneficial, who have significant control, direct or indirect, over the corporation.

An individual will be considered to have significant control over a corporation if he or she owns, controls or directs (whether directly or indirectly, such as through a personal holding company or otherwise) an amount of shares:

• carrying 25% or more of the voting rights attached to the corporation’s outstanding voting shares, or
• constituting 25% or more of the fair market value of the corporation’s outstanding shares.

Significant control will also be deemed to exist when an individual has influence over a corporation that, if exercised, would result in control in fact of the corporation. By way of example, individuals with the right to nominate or name a majority of the board of directors (regardless of whether such individuals are shareholders) would be considered to exert significant control over a corporation.

Each individual who holds jointly, or acts jointly or in concert with others, in respect of shares meeting the 25% thresholds will also be considered a significant controlling shareholder.

Contents of new share register

The new share register must contain the following information about significant controlling shareholders:

• name, address and birthdate;
• residential jurisdiction for tax purposes;
• date when significant control was obtained and, if applicable, date when significant control ceased;
• description of how the individual qualifies as having significant control; and
• any other prescribed information that may be set forth in future regulations.

At least once during each fiscal year, a CBCA corporation must take reasonable steps to ensure it has identified all individuals with significant control and the register is up to date. The register will also have to indicate the steps undertaken by the corporation each financial year to satisfy these requirements. The deadline for amending the register is 15 days after the corporation becomes aware of a need for an amendment. Corporations will be entitled to request from their shareholders any information needed for the register, and shareholders must reply promptly to the request.

Access to new share register

While the amendments do not make the register available to the public, the information in the register is available to all shareholders and creditors of a corporation who provide the corporation with an affidavit confirming they will only use the information for certain prescribed matters relating to the corporation’s affairs. A CBCA corporation must also provide the information from the register to the director appointed under the CBCA upon request.

Personal liability for non-compliance

It will be an offence under the CBCA for directors and officers of a corporation to knowingly authorize, permit or acquiesce in the recording or provision of false or misleading information in the new share register, or in the failure by the corporation to maintain the share register. It will also be an offence for a shareholder to fail to provide the information required to be included in the new share register upon request by the corporation. Upon conviction, a director, officer or shareholder may be liable for a fine of up to $200,000 or to imprisonment for a maximum of six months, or both.

Exemption for certain companies

Reporting issuers under Canadian securities laws are exempt from the new CBCA share register requirements, as such companies are already required to publicly disclose information about their significant shareholders. CBCA corporations listed on a stock exchange designated under the Income Tax Act are also exempt from the new requirements. Additional CBCA corporations of a prescribed class may be exempted from the new requirements in future regulations.

The CBCA rules will not apply to non-CBCA corporations. However, provincial and territorial finance ministers have agreed to follow the federal lead in this area, although the timing of them doing so is uncertain.