In May 2019, key amendments to the BC Business Corporations Act (the BCBCA) made by Bill 24 “Business Corporations Amendment Act, 2019” (the Amendment Act) were announced, requiring private companies under the BCBCA to prepare and maintain a “transparency register” of information about “significant individuals.”
These amendments to the BCBCA follow recent changes made by the federal government to the Canada Business Corporations Act (the CBCA). The amendments to the BCBCA and the CBCA follow up on the commitments made under the 2017 Agreement to Strengthen Beneficial Ownership Transparency among the federal, provincial and territorial finance ministers, in which they agreed to pursue legislative amendments to provide law enforcement, tax authorities and certain other regulatory authorities with up-to-date information on beneficial ownership of companies.
By an order-in- council dated April 6, 2020, (the OIC), the provincial government has delayed the implementation of the transparency register requirements until October 1, 2020, due to the COVID-19 pandemic. The provisions were previously scheduled to come into force on May 1, 2020. In addition, the OIC prescribes further exclusions to the application of the transparency register requirements (see the “Exclusions to requirements” section below).
Obligations of private companies and shareholders
When the relevant provisions of the Amendment Act come into force in October, private companies will be required to take reasonable steps to maintain a transparency register containing accurate, complete and up-to-date information about significant individuals. A private company is a company that is not (i) a reporting issuer or equivalent (or subsidiary thereof) (ii) listed on a designated stock exchange (or a subsidiary of a listed company) (iii) an insurance company or trust company as defined under the Financials Institutions Act (British Columbia) or (iv) among certain other prescribed classes of companies as set out in the OIC.
The transparency register must contain the following information for each significant individual:
- full name, date of birth and last known address;
- whether or not the individual is a Canadian citizen or permanent resident of Canada or, if not, a list of every country of which the individual is a citizen;
- whether or not the individual is a resident of Canada for tax purposes;
- the date on which the individual became or ceased to be a significant individual;
- a description of how the individual meets the definition of a “significant individual”; and
- any further information that may be required by regulation.
If a company determines that there are no individuals who are significant individuals in respect of the company, the transparency register must contain a statement setting this out.
In addition to the obligation to take reasonable steps to obtain the required information, private companies must also review the register annually and update the register throughout the year as new information becomes available. Private companies may send requests for information to shareholders at any time and, upon receipt of such requests, shareholders must take reasonable steps to compile and promptly provide the requested information. If a company is unable to confirm some or all of the required information, then the register will need to reference the information that could not be confirmed and the steps taken by the company to obtain such information.
The transparency register will only be required to include information relating to individuals deemed to be “significant individuals.” Individuals will be significant individuals if:
- they directly or indirectly own, or indirectly control:
- 25% or more of the issued shares of the company; or
- shares that carry 25% or more of the voting rights of the company, or
- they are able to exercise rights or influence, directly or indirectly, that would result in the election, appointment or removal of the majority of the company’s directors.
If two or more individuals meet the above criteria by jointly holding the prescribed interest or right, then each will be deemed a “significant individual.” Such interests or rights may be held among individuals through an agreement or arrangement to exercise rights in concert. In each instance, all individuals holding the rights jointly or in concert are deemed to be significant individuals under the proposed amendments and therefore must be included in the transparency register. For companies that are indirectly owned or controlled through other corporation, partnerships, agents or trusts, rules set out in the OIC are used to determine control.
Access to transparency register
Once the transparency register is prepared, the information must be held at the company’s records office (subject to limited exceptions) and will be available for inspection by prescribed officers. Unlike the CBCA, which will allow shareholders and creditors the right to inspect beneficial ownership information, under the BCBCA, such information will be available only to directors and officials conducting tax, regulatory or law enforcement investigations.
Specifically, the transparency register must be made available to taxing authorities, police officers and regulators such as the British Columbia Securities Commission, the Financial Institutions Commission, the Financial Transactions and Reports Analysis Centre of Canada, the Law Society of British Columbia and such other regulators to be prescribed by regulation.
Although the Amendment Act will require registers to be maintained at each company’s records office, it is notable that BC’s finance minister stated to the Committee of the Whole at third reading that the current amendments may only be a first step in an ongoing process. She noted there have been “discussions and recommendations from a variety of groups and organizations about a centralized registry similar to the land registry.” The minister’s comments suggest openness to a future centralized transparency registry that may offer public access to such information, as is available in the United Kingdom.
Exclusions to requirements
In addition to reporting issuers (or equivalent) and companies listed on a designated stock exchange, the following entities will not be required to prepare a transparency register:
- a company that is a wholly owned subsidiary of a corporation that is a reporting issuer (or equivalent) or listed on a designated stock exchange;
- an insurance company;
- a trust company;
- a government corporation;
- a company that is a wholly owned subsidiary of a company incorporated, continued or amalgamated by an enactment; and
- a company incorporated or wholly owned by a municipality or regional district.
Offences and liability
The Amendment Act will make it an offence for private companies to not take reasonable steps to (i) identify significant individuals, (ii) obtain and record information about such individuals and (iii) maintain and review such records on an ongoing basis. Further, any director or officer of a private company who authorizes, permits or acquiesces to the commission of such offences or any shareholder who provides false or misleading information to a private company may be held personally liable. Liability for such offences is limited to a fine of up to $50,000 for individual offenders and $100,000 for other persons.