Establishing a business in Canada (Federal)
A Q&A guide to establishing a business in Canada.
This Q&A gives an overview of the key issues in establishing a business in Canada, including an introduction to the legal system; the available business vehicles and their applicable formalities; corporate governance structures and requirements; foreign investment incentives and restrictions; currency regulations; and tax and employment issues.
To compare answers across multiple jurisdictions, visit the Establishing a business in... Country Q&A Tool.
This article is part of the global guide to establishing a business worldwide. For a full list of contents, please visit www.practicallaw.com/ebi-mjg.
All Canadian provinces and territories except Quebec have a legal system that is based on the English common law tradition. Quebec has a civil law legal system based on the French Civil Code.
There are many rules affecting the rights of parties conducting business in Canada. These rules derive from the judgments made in the courts of Canada. These rules form part of the law and are separate from statutes, regulations, bye-laws and directives (the legislative enactments of federal, provincial/territorial and municipal governments). Over time, they are generally embodied in the practices observed by everyone and are referred to as the "common law."
The Province of Quebec has enacted the Civil Code of Québec (CCQ) containing written rules that govern such matters as the law of commerce in the province. Quebec courts then interpret the CCQ on a case-by-case basis, although they are strongly influenced by the common law doctrine of precedent.
This article focuses on the common law in Canada. For more information on CCQ, see Establishing a Business in Canada (Quebec).
The following are the most common types of business vehicles used in Canada:
Branch plant operations.
General or limited partnerships.
Establishing a presence from abroad
A variety of factors will influence the course chosen by a foreign entity for entry into Canada, such as:
The entity's industry and business strategy.
Tax, legal, regulatory and liability considerations (both domestic and foreign).
The availability of financing and government incentives, and so on.
The most common options have traditionally been establishing a branch plant operation or a subsidiary Canadian corporation, though establishing a presence in Canada by way of a franchise, licensing or distribution arrangement, partnership or joint venture are also common routes of business entry (see Questions 4 to 6).
The corporation is the most commonly used vehicle for entry into Canada because:
It limits the liability of shareholders (except in the case of unlimited liability companies, which are only permitted statutorily in the Provinces of Alberta, British Columbia and Nova Scotia).
Gives management all of the powers of a natural person including the ability to own property and carry on business.
Its securities are more marketable and transferable than those of some other business vehicles.
A corporation can be incorporated in Canada with or without share capital either federally or provincially. Only corporations with share capital are considered in this article, since those without share capital are typically not-for-profit, charitable and other tax-exempt entities. Depending on the governing statute, a corporation with share capital can be subject to legislative provisions concerning:
The residency of the corporation's directors (see Question 28).
The establishment of a quorum for valid directors' meetings.
Matters for which a special resolution is necessary (see Question 17).
The circumstances in which a corporation may indemnify its directors and officers.
Oppression remedies (see Question 15).
Advantages of using a corporation include the following:
A corporation is a separate legal (taxable) entity that enjoys perpetual existence (unless it is dissolved) in Canada.
The corporate form of business organisation is very familiar in the Canadian marketplace, and preparation of its documentation is streamlined and involves a relatively modest expense.
There are no minimum capitalisation requirements and a corporation doesn't need to have a stated purpose for carrying on business in its articles of incorporation.
Working capital can be raised through the issuance of debt or shares, and transfer of control can be affected by the transfer of issued and outstanding shares.
Dual share structures are allowed and in the case of public companies should conform with the principles enumerated by the Canadian Coalition for Good Governance. Both the Canada Business Corporations Act (CBCA) and Ontario's Business Corporations Act (OBCA) confer voting rights on holders of non-voting shares in certain specified circumstances. See Question 8 for detailed discussion of the regulatory framework governing corporations.
The parent company of a corporation, whether foreign or domestic, is shielded from the general liabilities of its Canadian subsidiary, unless a lender requires the parent company to provide a guarantee, or the parent owns and operates a subsidiary in a manner that disregards its independence (a situation where Canadian courts will "pierce the corporate veil".)
Disadvantages of using a corporation include:
Greater regulatory requirements for corporations than there are for other forms of business organisation.
Detailed rules relating to the preparation of annual financial statements, both in the federal and provincial regimes.
Financial solvency tests that the corporations must adhere to. Whenever shares are redeemed or purchased, or dividends are paid, the corporation must ensure that:
it can still meet its financial obligations as they fall due; and
that the realisable value of its assets is not less than the sum of the corporation's third-party obligations, and the stated capital (the aggregate amount paid for all shares as they were allotted and issued) of each class of its issued shares.
Branch plant operation
A foreign corporation can establish a business in Canada by registering in each province in which it conducts business as an extra-provincial corporation. As no new legal entity needs to be created, start-up costs are minimal. Additionally, losses commonly incurred in start-up branch operations can be written off against profits from the foreign corporation's other operations. In contrast to other provinces, Ontario does not require any corporation incorporated anywhere else in Canada to hold an extra-provincial licence or a provincial registration number.
There are disadvantages in establishing a branch plant operation including:
Transfer pricing risks.
Financial disclosure obligations.
Legal compliance and regulatory issues, including those impacting specific industries (for example, banking, insurance, mutual funds, and so on).
Ineligibility for government funding.
The need to post security for costs in a Canadian court proceeding.
The difficulties inherent in computing income for Canadian tax purposes.
A foreign corporation or investor can enter the Canadian market indirectly through the use of independent sales agent, licensing, distribution or franchising arrangements. Several factors may influence whether a foreign corporation chooses one of these arrangements including:
Intellectual property registration requirements.
The possible application of withholding taxes.
Anti-trust provisions under the federal Competition Act.
Provincial regulation of the franchise relationship.
The common law tests applied to establish a distribution arrangement.
The need to post security for costs in a court proceeding.
A franchise involves the grant of a form of licence, where intellectual property (usually a name and trade mark) and a body of knowledge and systems (collectively, the know-how) are licensed from the owner (the franchisor) to the franchisee for payment under a franchise agreement, so that the franchisee can use this licensed property for a limited time to replicate the licensor's business model. It is seen as a way to grow a business with the benefits of having "owner/operators" at the operational level, and through the use of another's capital.
Foreign franchisors are usually advised to register under the extra-provincial corporate statute of the province(s) in which they intend to operate. They should also consider elements such as legal context, structure, intellectual property protection and relationship governance. Certain provinces in Canada, including Ontario, have franchise legislation which requires franchisors to give franchisees prospectus-like disclosure and imposes fair dealing obligations on both parties.
A licensing arrangement is very similar to franchising in that products, intellectual property, technology or know-how are licensed for a fee, but generally less complex and not subject to provincial regulatory regimes. As such, a licensor can secure relatively inexpensive market access, while a licensee gains access to a proven proprietary platform. Caution must be exercised when establishing such an arrangement to ensure it is not deemed a franchise system and subjected to relevant provincial legislation while ensuring adequate protection of the licensor's proprietary assets.
A distribution arrangement is another useful entry point for business in Canada. An independent sales agent is usually an "order taker". Distributors usually operate on a purchase for re-sale basis, although consignment arrangements are possible. Case law has established certain tests that must be satisfied when establishing a distributor arrangement.
A partnership is a contractual relationship with legal attributes that are legislated provincially (not federally), for example, for partnerships carrying on business in Ontario, the Ontario Partnerships Act. However, most provinces and territories provide for the registration of extra-provincial partnerships, meaning partnerships can register and carry on business in provinces and territories other than their home jurisdiction.
A general partnership is a form of business organisation where parties carry on business with a common view to making a profit. Under Canadian law, a general partnership is not a distinct legal (taxable) entity from its constituent partners and as such any resulting net income or loss is taxable in the hands of the partners in accordance with their proportionate capital interests in the partnership. General partners have fiduciary obligations to each other, each partner is considered the agent of the other partners and all partners are jointly and severally responsible for the liabilities of the partnership. Although not legally required, most substantive partnerships are governed by a partnership agreement which defines the relationship as between the partners, including the:
Operation of the business.
Distribution of profits and losses.
Addition or removal of partners.
In Ontario, the Business Names Act requires a general partnership operating under a name other than the names of its partners to register that business name. Whether or not a partnership exists is a question of fact and cannot be determined solely by the language of any agreement between the parties that either denies or asserts partnership.
Disadvantages in establishing a general partnership include the:
Expense in preparing a partnership agreement, given its highly detailed nature (more expensive to prepare than using documents of other business vehicles).
Difficulty in attracting suitable partners and raising necessary capital.
Joint and several liability of each partner for all partnership obligations.
Limited existence of such partnerships.
Need for each partner to qualify as carrying on business in the province(s) in which the partnership carries on business.
Potential complexity in transferring partnership interests.
A limited partnership is a separate statutory form of partnership created by filing a form prescribed by the applicable provincial Limited Partnerships Act.
In each case, one class of partners (the limited partners) has limited liability for the obligations of the partnership corresponding to their investment in the partnership; otherwise, the limited partners have many of the same rights and obligations as the other class of partners known as the general partners (and there must always be at least one general partner). To retain their status, limited partners are prohibited from participating in the management of the partnership's business; however, the Limited Partnerships Acts do not provide guidance as to what constitutes "management of the partnership's business".
The general partners have joint and several unlimited liability for the obligations of the partnership. None of the Limited Partnerships Acts have "safe harbour" rules similar to those set out in US Uniform Limited Partnerships Acts to guide and protect limited partners. A foreign corporation can be a limited partner. Depending on the province such corporation may be deemed to be carrying on business in the home province of the limited partnership which may obligate the corporation to register as an extra-provincial corporation, file returns and pay tax on income earned in that province. Most provinces do not define the conduct that constitutes carrying on business by a foreign limited partner, and such determination is made based on case law.
Limited liability partnership
Limited liability partnerships (LLPs) provide a unique hybrid partnership structure where individual partners retain liability for only their own acts and omissions (or those of employees under their supervision), while the assets of the LLP are available to satisfy all debts and claims against the whole. Unlike limited partnerships, LLPs do not have limited partners, however most provinces restrict the use of LLPs to certain professional service providers, such as lawyers and accountants, and in some provinces physicians and dentists.
A joint venture is a form of business organisation based on a contract. Each of the parties to the joint venture contributes the use of property owned by it (which it retains) for a single, identified, common purpose. The nature of the business association between the parties is governed by the underlying contract, which may outline arrangements as to management, profit sharing, parties' rights/restrictions, and so on.
With no statutory basis for this form of business organisation, some joint ventures choose to incorporate while others choose to remain unincorporated and as such are not considered distinct legal entities. Under a joint venture arrangement, the parties maintain a significant degree of independence in conducting their other business activities. In practice, the most important goal in drafting a joint venture arrangement is to avoid having the structure characterised, at law, as a partnership, because of the duties imposed on partners (as discussed in Question 5). The existence of a partnership is a question of fact and every effort must be made to structure the joint venture arrangement and the manner with which it conducts business to support the conclusion that the participants are not, in fact, partners.
A special corporation known as a co-operative association can be established for certain purposes and industries (for example, insurance and credit unions) as permitted by federal and provincial law. The property and assets of a co-operative are owned by the members of the co-operative through their membership, not through share capital. The members are intended to benefit generally from the activities conducted by the co-operative. A federally incorporated co-operative is intended to operate on a not-for-profit basis in at least two provinces.
Certain publicly listed trusts and partnerships (collectively referred to as "specific investment flow-through vehicles" (SIFTs)) exist in Canada and generally hold income producing assets whose income is then passed on to unitholders/ partners. Prior to the 2006 changes to the tax treatment of trusts in Canada, SIFTs were very commonly used business vehicles due to the favourable tax treatment accorded to them. However, since 2006 their prevalence has decreased as SIFTs are now taxed in the same manner as corporations in respect of taxable distributions, and unitholders are treated as having received dividends of such amounts.
The use of trusts is still relatively common in the real estate sector where real estate investment trusts (REITs) span a wide and growing range of sectors and markets. REITs serve as income producing real estate vehicles that are attractive to investors given their stable yields, substantial tax advantages and perceived lower risk profile compared to other investments. A number of leading Canadian companies have turned their real estate portfolios into publicly traded REITs. These transactions require complex tax and corporate structuring and should be executed by Canadian and foreign advisors who are experienced in this specialised area.
The answers to the following questions relate to private limited liability companies (or their equivalent).
Forming a private company
There are 14 different Canadian statutes (ten provincial, three territorial and one federal) under which a person may incorporate a corporation with share capital in Canada (see Question 3). This contrasts with the US, where it is not possible to incorporate federally.
Although a number of different statutes and regulatory bodies may ultimately govern the affairs of a private corporation, the primary governance framework is set out in the corporate statute:
For federal incorporation, the Canada Business Corporations Act (CBCA).
For provincial incorporation, the relevant provincial statute (in Ontario, the Ontario Business Corporations Act).
The relevant corporate statute and its accompanying regulations establish, among other things, the rules that govern the relationship between the corporation and its directors, officers, shareholders, regulators and stakeholders.
Industry Canada oversees federally incorporated companies, while the equivalent provincial Ministry of Government and Consumer Services oversees companies incorporated in their respective jurisdictions.
To incorporate in Ontario or federally in Canada, a company must:
Submit articles of incorporation to the relevant oversight body.
Conduct a computerised name search through a system called NUANS. However, in the case of the incorporation of a numbered company (a corporation given a generic name based on its sequentially-assigned corporation number) a NUANS search is not required.
Before a province will issue an extra-provincial licence or a provincial registration number, it requires some evidence that the name of the applicant foreign corporation is not so similar to an existing business name used in the province as to be confusing to the public. A search is undertaken on all corporate names and trade styles registered in the province and all trade marks registered with the federal government. A corporation's use of a name that could be confused with the name of another entity exposes the corporation to a potential passing-off action. In such an action, a court can require the corporation to pay a portion of its profits to the claimant with a similar name and to cease and refrain from using the name.
If a proposed name is cleared, articles of incorporation are filed either electronically or in person, along with specified initial notice forms and fees. Among other things, the articles set out the company's:
Registered office address (this cannot be a post office box).
First director(s) and/or incorporator(s).
Share capital and any share provisions.
Filed articles are generally available to the public on request.
In addition to articles, corporations may also have bye-laws setting out various governance procedures to complement or, in some cases, override those default provisions set out in their governing corporate statute. In Ontario, bye-laws must be approved by both the directors and shareholders, and typically set out the procedures for directors and shareholders' meetings, document/instrument execution, banking arrangements, directors' remuneration, and so on. Generally, it is not necessary to file the bye-laws with the articles and bye-laws are usually not publicly available.
Except for corporations that are publicly traded (publicly accountable enterprises (PAEs) or reporting issuers) (see Question 25) and corporations within the scope of the federal Corporations Returns Act (see Question 10), there is no obligation to file financial statements as part of any public record.
All Canadian PAEs must, and any other enterprise who wishes to opt in may, prepare their financial statements in accordance with International Financial Reporting Standards (IFRS) rather than Canadian generally accepted accounting principles (GAAP). All other Canadian business enterprises may prepare their financial statements using Canadian GAAP principles for small and medium enterprises or IFRS.
A corporation income tax return must be filed annually (even if there is no tax payable) if the corporation:
Has carried on business in Canada.
Had a taxable gain attributable to a business conducted in Canada.
Has disposed of taxable Canadian property.
A branch office in Canada is treated like a resident corporation and must also file an income tax return every year. Like resident corporations, the branch only pays tax for income attributable to its Canadian activities.
The federal Corporations Returns Act imposes an obligation on every corporation carrying on business in Canada (including provincially incorporated companies) to file an annual return if its gross revenue in Canada exceeds Can$15 million or the book value of its assets exceeds Can$10 million (including revenue and assets of all affiliates carrying on business in Canada), or if any of the following conditions apply:
Equity in the corporation held by a non-resident of Canada exceeds Can$200,000.
The corporation has debt obligations to a non-resident of Canada exceeding Can$200,000 with a maturity of one year or more.
The corporation has equity held by non-residents or debt obligations owing to an affiliate, director, shareholder or non-resident exceeding a book value of Can$200,000.
The annual return must be filed under the Corporations Returns Act within 90 days of the corporation's fiscal year-end. It discloses the following information:
Names, addresses and nationality/citizenship of its directors and officers.
The issued share capital.
The shareholdings of each of its directors and officers.
The name, address and shareholdings of each other shareholder (or related group of shareholders) holding 10% or more of any class of shares of the corporation.
The shares (representing 10% or more of the issued shares in the company) owned by the corporation in other corporations doing business in Canada.
The corporation's debt obligations at the end of the relevant period.
The information contained in reports filed under the Corporations Returns Act is placed in the public record that can be searched by anyone interested in doing so. The filing of a return by a holding company satisfies the filing obligation of each of its subsidiaries.
Every corporation obligated to file a return under the Corporations Returns Act must also file consolidated financial statements. Companies that have already filed a T2 Corporation Income Tax Return are exempt from this requirement. These financial statements are not made available to the public and do need to be audited, although an officer of the corporation must certify that the return and financial statements are correct and complete to the best of his or her knowledge and belief.
Generally, a corporation's bye-laws provide for document and instrument execution procedures, such as who can execute documents on behalf of the corporation. Often bye-laws provide that the board of directors can delegate execution authority by resolution. Corporate seals are not required by law to execute deeds or contracts.
The indoor management rule allows the counter-party to a contract to assume that the corporate party it is contracting with has satisfied all of the procedures required by its articles, bye-laws or otherwise to authorise a contract or give the authority to a person claiming to act on behalf of the corporation.
Privately-held companies in Canada can have up to 50 shareholders, with no minimum number of shareholders. A privately-held company can sell shares without issuing a prospectus as required by provincial securities laws (see Question 25 for more information on securities laws and public companies) by relying on certain statutory exemptions, including the private issuer exemption contained in National Instrument 45-106, Prospectus Exemptions. This exemption is available to private companies that are closely held and whose shares are:
Subject to restrictions on transfer that are contained in the issuer's constating documents (that is, its articles and bye-laws) or shareholder agreement.
Beneficially owned by not more than 50 persons (apart from current and former employees of the issuer and its affiliates).
Has distributed shares only to specifically identified classes of investors who are persons that are not considered the public, such as directors, officers, family members and close business associates, employees, existing shareholders, accredited investors, and so on.
Minimum capital requirements
Private companies relying on the private issuer exemption to the prospectus requirements of provincial securities laws must have share transfer restrictions in their articles which prohibit the transfer of the majority of the voting shares of the corporation without either the approval of the board of directors or the shareholders (see Question 12). Articles or shareholders agreements also may provide pre-emptive rights or rights of first refusal on share transfers to the non-transferring shareholders, but these are not statutory requirements.
Shareholders and voting rights
In Canada, a corporation is a distinct legal entity from its shareholders and a shareholder is usually not liable for the acts or omissions of the corporation. However, over time the courts have established a few exceptions to this basic principles where litigants can "pierce the corporate veil" separating a corporation from its shareholders and impose liability directly on shareholders. These exceptions include the perpetration of a fraud, complete control of the corporation by the shareholder(s) or on grounds related to justice and equity.
Most of the 14 Canadian corporate statutes including the Canada Business Corporations Act and Ontario Business Corporations Act provide an "oppression remedy" pursuant to which minority shareholders and other third party stakeholders (including creditors) can seek judicial protection, including injunctive relief, from the "oppressive" acts or omissions on the part of the corporation. Determining what constitutes oppressive conduct is subject to judicial interpretation and often involves a highly fact-specific analysis. However, it is generally viewed as being any conduct which is unfairly prejudicial to or unfairly disregards the interests of any shareholder, creditor, director or officer of the corporation.
A unanimous shareholders' agreement can, depending on the circumstances and its content, serve to protect the interests of minority shareholders as all, or part, of the directors' duties and responsibilities are assumed by the shareholders. A unanimous shareholders' agreement can also expose shareholders to directors' liabilities, duties and obligations. It is not clear whether a shareholder would be covered by directors' and officers' insurance coverage. A transferee of shares subject to a unanimous shareholders' agreement will be deemed to be a party to it and will be bound by it.
Minority holders of voting shares can be empowered by a system of cumulative voting established in the corporation's articles where each shareholder receives the number of votes in proportion to their shareholdings multiplied by each director position. This allows shareholders to pool votes to concentrate their voting power and promotes the election of directors sympathetic to minority shareholders.
Subject to a corporation's bye-laws, a quorum of shareholders will be established at a shareholders meeting if a majority of the shares entitled to vote at the meeting are either present in person or represented by proxy. Voting rights are stipulated in a corporation's articles and can be amended by a special shareholders resolution (see Question 17).
Corporate statutes mandate the passage of a special resolution by two thirds of shareholders entitled to vote (or of the votes cast) to undertake certain fundamental corporate changes, including changes to:
The province in which its registered office is located.
Any restriction on the business or businesses that the corporation may carry on.
The maximum number of shares that the corporation may issue.
Any stated capital set out in the articles.
The rights or privileges of a class of shares or the creation of a new class of shares.
The minimum or maximum number of directors.
Share transfer restrictions.
The sale of all or substantially all of the corporation's assets.
Corporations are free to create different classes of shares with different voting rights, however the rights of each shareholder in a given class must be identical to those of the other members of that class. For example, a corporation can create a preferred class of shares with four votes per share, and a common class of shares with one vote per share; but each preferred share must have four votes per share while each common share must have one vote per share. Companies listed on the Toronto Stock Exchange must adopt majority voting policies for the election of directors at shareholder meetings (unless the company is already majority-controlled). Companies on the TSX Venture Exchange do not have this requirement.
See Question 25 for more information about public companies and stock exchanges in Canada.
A number of statutes in Canada, both federal and provincial, impose foreign ownership restrictions in certain industries and sectors. Some notable restrictions include limits on foreign ownership of Schedule 1 banks under the Bank Act and insurance companies (no individual investor can hold more than 10% of outstanding shares, while aggregate holdings of non-residents cannot exceed 25%) and broadcasters (broadcasting licences are not issued to non-Canadians or entities controlled by non-Canadians). Other notable industries and sectors where foreign investment is limited by federal and/or provincial statutes include the following:
Oil and gas.
Cultural/heritage activities and products (which include publishing, film and audio production, distribution and sales).
Liquor and beer sales.
Foreign investment restrictions
For foreign companies considering doing business in Canada, the Investment Canada Act (ICA) provides comprehensive rules designed to ensure that investments by non-Canadians result in a net benefit to Canada. All transactions are also potentially reviewable on national security grounds. Transactions involving companies operating in certain regulated industries (see Question 19) can be subject to several multi-jurisdictional regulatory requirements and approvals. In addition, there are separate guidelines for investments by state-owned enterprises (SOEs).
The ICA applies cases when a non-Canadian:
Acquires control of a Canadian business and the business has a place of business in Canada, assets in Canada used for the business and employees employed in connection with the business.
Establishes a new Canadian business and the new Canadian business is either unrelated to any other business that the non-Canadian is operating when the new business is established or, if so related, considered connected to Canada's cultural heritage or national identity (for example, publishing, film and music).
Review or notification
Where the ICA is applicable, investments are subject to either pre-closing review or post-closing notification. Generally, a reviewable direct acquisition of control of a Canadian business may not be completed until approved by the relevant federal minister. Whether an investment is reviewable or requires notification depends on criteria such as whether the:
Business that is being acquired operates in the sector of culture.
Transaction is a direct (acquisition of a Canadian company) or indirect (acquisition of a non-Canadian parent) investment.
Purchaser or vendor is a resident of a World Trade Organization (WTO) member country (WTO investor).
Both direct and indirect acquisitions may be subject to review. The ICA considers a direct acquisition to be the acquisition of all or substantially all of a Canadian business's assets or a majority (or, in some cases, one-third or more) of the shares of the entity carrying on the business in Canada. A direct acquisition by a non-SOE WTO investor (other than one involving cultural business) is reviewable where the value of the Canadian business exceeds Can$600 million in "enterprise value". A direct acquisition by SOEs controlled out of a WTO member country is reviewable where the value of the acquired Canadian assets is Can$375 million or more. A direct acquisition by a non-WTO investor, or where a business in the sector of culture is being acquired, is reviewable where the value of the acquired Canadian assets is Can$5 million or more.
The ICA considers an indirect acquisition to be the acquisition of control of a Canadian business by virtue of the acquisition of a non-Canadian parent entity. Indirect acquisitions by WTO investors (including SOEs but other than those involving a cultural business) are not reviewable. Indirect acquisitions by non-WTO investors, or the acquisition involving a business operating in the sector of culture, are reviewable where the value of the Canadian assets is Can$50 million or more.
If the transaction is not subject to review, a filing that must be made within 30 days after acquiring an existing business or establishing a new business (that is, post-closing filing). The notification form now requires more detailed information from the investor regarding their governance, management and ownership and contract particulars.
Net benefit test
The ICA requires the responsible minister to consider certain factors in determining whether an investment is likely to be of net benefit to Canada, including but not limited to the following:
Effect of the investment on economic activity, including employment, use of Canadian products and services, and exports.
Effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety.
Maintenance of Canadian facilities/head office.
Participation by Canadians in the Canadian business, such as the number of Canadian directors and officers.
Effect of the investment on competition within the relevant industry.
Contribution of the investment to Canada's ability to compete internationally.
Conditions for approval
During the review period, the investor and Investment Review Division will negotiate a mutually acceptable set of time-limited (usually three to five years) binding undertakings to be provided in connection with the minister's approval of the transaction. These undertakings comprise investor commitments concerning operation of the Canadian business following the completion of the transaction relating to the location of the head office, employment levels, capital expenditures, and so on. These undertakings are usually reviewed on a 12 to 18-month basis to confirm the investor's performance. Note that the ICA's enforcement provisions include potential fines of up to Can$10,000 per day for a breach of undertakings given in connection with ICA approval.
Canada does not have any exchange control or currency regulations and the Canadian dollar can be freely exchanged and sent out of the country, subject only to withholding tax obligations, where applicable (see Question 28).
In most Canadian provinces, a non-resident has the right to purchase, hold and sell real property. Generally, for a corporation to purchase, hold and sell real property in a province other than the one in which the corporation is incorporated, it must apply for and hold a valid extra-provincial registration or licence.
The following provinces restrict foreign ownership of land:
Alberta: foreign residents and corporations cannot own an interest (except a mortgage interest) in more than 20 acres outside of a town, city or village.
Saskatchewan: foreign residents and corporations cannot own an interest (except in a debt security that is not enforced by the holder) in more than ten acres of "farm land".
Manitoba: foreign residents and corporations cannot own an interest in more than 40 acres of "farm land".
Quebec: see Establishing a Business in Canada (Quebec).
Prince Edward Island: non-residents and corporations cannot hold more than five acres of land.
Aboriginal Peoples in Canada have either unsettled legal claims and rights or court-affirmed legal claims and rights to and on large portions of the country. Businesses in the natural resources sector (such as energy, forestry, mining and fishing) are among those most affected by Aboriginal law issues, which naturally arise when developments or activities occur on lands subject to land claims or other Aboriginal or treaty rights. Case law relating to Aboriginal or treaty rights and interests is still evolving as such, awareness of current applicable laws is imperative to the success of a project. In groundbreaking decisions in 2014, the Supreme Court of Canada developed a more detailed legal test to determine the existence of Aboriginal land title and imposed more onerous consent and consultation obligations on government as a requirement to approving the development of such lands by third-party interests.
The first directors of a corporation are named in the articles of incorporation and hold office until the corporation's shareholders pass a resolution (either by way of written resolution or one passed at the first shareholders meeting) re-appointing those first directors or electing new ones. The same procedure is used for the subsequent election or removal of directors. The length of directors terms are specified in the articles and can be staggered and if no term is specified then such director will cease to hold office at the close of the first annual meeting of shareholders following their election. If no directors are elected at a shareholders meeting the incumbent directors will continue in office until their successors are elected.
Subject to the exceptions described below, resident Canadians must comprise at least 25% of the directors for Canada Business Corporations Act (CBCA) and Ontario Business Corporations Act (OBCA) corporations (the same threshold applies in Alberta and Saskatchewan). A "resident Canadian" is defined as:
A Canadian citizen ordinarily resident in Canada.
A Canadian citizen who is not ordinarily resident in Canada but who falls into certain specified classes (that is, a person who is a full-time employee of a Canadian controlled corporation).
A landed immigrant ordinarily resident in Canada. A landed immigrant is a person who has successfully sought lawful permission to establish permanent residence in Canada. To remain qualified as a resident Canadian for the purposes of the CBCA, the landed immigrant must have made their application for Canadian citizenship within one year of being entitled to do so. This is not a requirement for directors of an OBCA corporation.
If there are fewer than four directors, under the CBCA at least one director must be a resident Canadian. There are no residency requirements for directors of corporations established under the corporate statutes of British Columbia, New Brunswick, Nova Scotia, Prince Edward Island, and Quebec.
Additionally, all directors of Canadian corporations must:
Be an individual.
Be at least 18 years old.
Be of sound mind.
Not be bankrupt.
Lastly, many corporate statutes require that publicly-traded corporations have a certain number of "independent directors" on their board, meaning directors who are not officers or employees of the corporation or its affiliates. Under the OBCA, at least one-third of directors of publicly-traded corporations must be independent directors while the CBCA requires a minimum of three directors, two of which must be independent.
Corporations in Canada have a unitary board structure.
Number of directors or members
The number of directors required to serve on the board of a corporation is generally stipulated in the articles, as too are any requirements related to a minimum or maximum number of directors. Both the Ontario Business Corporations Act and Canada Business Corporations Act provide that private corporations are required to have at least one director while publicly-traded corporations are required to have at least three directors (as discussed in Question 23, there are certain requirements for "independent directors"). Depending on the jurisdiction of incorporation specific notice filings may need to be made with the relevant regulatory oversight body with respect to the election and/or removal of directors.
Corporate legislation does not provide employees with a right to representation on the board of directors.
Canadian regulators have taken a guideline approach with respect to best practices in corporate governance. Canadian public companies must disclose annually if they are complying with the recommended best practices and, if they are not, the reason for non-compliance. This approach recognises the reality that corporate governance is in a state of evolution and that uniform governance mechanisms may not be suitable for all different kinds of companies.
Reregistering as a public company
A corporation must specify in its articles a fixed number of directors or a minimum and maximum number of directors. Generally, a corporation must have at least one director. However, a soliciting corporation must have a minimum of three directors, at least two of whom must not be officers or employees of the corporation or its affiliates
Canada's provinces are responsible for regulating their capital markets (see Question 33for discussion of a national securities regulator), and by extension, public companies. The focus of securities regulation in Canada is disclosure of information and the regulation of market participants which support the overarching goal of protecting the investing public.
Unless a statutory or discretionary exemption applies, the issuance of securities in Canada (including by way of an initial public offering) requires the filing with securities regulators and delivery to investors of a comprehensive disclosure document known as a prospectus. This document sets out detailed material disclosure relating to the issuer and the securities being issued and must be reviewed by the applicable Canadian securities regulators. A prospectus must contain full, true and plain disclosure about the securities and the issuer.
National Instrument 45-106 Prospectus Exemptions (NI 45-106) largely harmonises prospectus exemptions across the various provinces and territories of Canada. Certain key exemptions provided by NI 45-106 include:
Private issuer exemption: see Question 12.
Accredited investor exemption: the most popular exemption for private placements, and one where the trade of securities can be affected on an exempt basis if the purchaser meets certain threshold of sophistication, notably a high net worth.
Related party exemption: Distributions to employees, executive officers, directors or consultants of the issuer or a related entity of the issuer will be exempt.
Transaction exemption: Distributions in connection with an amalgamation, merger, arrangement, dissolution or winding-up are exempt only if they are described in another disclosure document associated with such transaction.
In Canada, companies may be listed on the Toronto Stock Exchange (companies with at least Can$7.5 million in net tangible assets and Can$200,000 in pre-tax earnings), the TSX Venture Exchange (companies with Can$500,000-Can$1 million in net tangible assets and Can$50,000–Can$100,000 in pre-tax earnings) or the Canadian Securities Exchange (companies with 500,000 freely-tradable shares worth at least Can$250,000 and consisting of at least 150 public shareholders). In addition to regulations set out in provincial securities laws and national instruments, each exchange also has certain rules and requirements that must be met before a company may be listed.
Taxes on business income
The Canada Revenue Agency (CRA) administers the income tax system for the federal government and most provinces. The federal and provincial Income Tax Acts (ITA) set out liability for tax on income.
Residents in Canada are taxed on their worldwide income. A non-resident is generally taxed on its income from carrying on business in Canada. Income is taxed progressively at both the federal and provincial levels. The top personal marginal tax rate for an individual can be between 44.50% and 58.75%, depending on the province. Dividends and capital gains receive favourable tax treatment.
Corporations that are taxable in Canada pay a flat rate (federal and provincial combined) of between 26% and 31% on active business income, depending on the province. Both levels of government provide some relief to Canadian-controlled private corporations and corporations involved in manufacturing and processing.
Taxes on capital gains
Any disposition of "taxable Canadian property" by residents or non-residents is taxable in Canada. Taxable Canadian property includes real property situated in Canada, eligible capital assets in certain industries, certain shares or securities in a corporation, and certain ownership interests in partnerships and trusts.
A non-resident person who disposes of taxable Canadian property, other than excluded property, must obtain a clearance certificate from the CRA. The certificate validates that tax has been paid on the capital gain. If a certificate is not obtained, a purchaser of taxable Canadian property from a non-resident vendor must withhold and remit 25% to 50% of the purchase price to the CRA.
Harmonised sales tax (HST) and provincial sales tax (PST)
HST and PST are sales taxes remitted to the federal and provincial governments. They are taxes on end-users. HST combines the 5% federal goods and services tax (GST) with the PST, usually at a rate of between 13% and 15% depending on the province and its administration is handled by the CRA. The provinces of Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland & Labrador impose HST.
Alternatively, most non-HST provinces administer their own PST separately from GST, usually at a rate of between 5% and 10% for their portion, leading to a combined federal-provincial rate in a similar range as the HST. Alberta is the only province that does not impose a provincial sales tax. Certain goods and services can be GST/HST exempt, leading to a tax credit for the supplying business.
M&A tax planning
In a merger, it may be useful to incorporate a Canadian corporation to affect the acquisition of a targeted company. Some advantages include:
Avoidance of withholding tax.
Potential qualification for a tax-free rollover.
The ability to reduce capital gains taxes by bumping up the valuation of property to fair market value.
Some expenses of this placeholder Canadian corporation, like interest, may be offset by the income of the target corporation if the two companies are merged.
Certain international tax structures are regulated under the ITA. See Question 29 for more information.
Persons who are resident in Canada within the meaning of the Income Tax Acts (ITA) are liable for tax on their worldwide income. A "person" includes an individual, a corporation or trust. A partnership calculates its income as if it were a person, but the income (or loss) of a partnership is allocated among the partners for tax purposes and the partners are subject to tax thereon.
A corporation is deemed to be resident in Canada if it was incorporated in Canada. However, a corporation incorporated outside of Canada will also be considered resident in Canada if its central mind and management are located in Canada. Trusts will be taxed in Canada if their management and control is domiciled here.
A person who is a non-resident of Canada is subject to Canadian tax on income or gains from a Canadian source, which includes a business carried on in Canada. Under the ITA, a business includes a profession, calling, trade, manufacture or undertaking of any kind. The ITA also deems certain activities to constitute carrying on business in Canada. The common law has also established that a business is "anything which occupies the time and attention and labour for the purpose of profit." Income tax can be reduced or eliminated via a tax treaty that Canada has entered into with the non-resident person's country of residence.
Withholding taxes are applied to active or passive income that is remitted abroad. The onus is on the person paying the non-resident to withhold and remit the amount mandated by the Income Tax Acts (ITA) to the Canada Revenue Agency (CRA). However, the tax liability is on the non-resident payee.
Withholding tax on active income, such as the payment to a non-resident person of a fee, commission or other amount in respect of services physically performed in Canada is taxed at a rate of 15%. Meanwhile, the withholding tax rate on passive income is 25% (which can be reduced as a result of a tax treaty). Sources of passive income that attract tax liability include:
Dividends, including dividends deemed to have been paid pursuant to the ITA.
Management and administrative fees.
Branches pay income tax at the same rate as Canadian corporations. A branch tax of 25% is then levied on the after-tax business profits of a non-resident corporation carrying on business in Canada through a branch. The tax is meant to simulate a withholding tax on income leaving Canada. As a result, money reinvested in the company's Canadian branch will not be subject to the tax. The establishment of a Canadian subsidiary would also allow avoiding the branch tax in most cases. Branch tax burdens are often reduced in tax treaties.
Normally, interest is deductible against the debts resulting from loans received for purposes of generating business income or acquiring property. Thin-capitalisation rules prevent this deduction from being leveraged by non-residents to finance a company mostly with debt as opposed to equity. A "specified non-resident shareholder" (or a non-resident not at arm's length to a shareholder) is limited in the deductibility of interest paid to a non-resident. A specified non-resident shareholder is defined as one who either owns shares accounting for 25% of the voting rights or shares worth 25% of the fair market value of the corporation. More recently, this rule was extended to apply to partnerships with one or more non-resident partners. Interest on debt above a 1.5:1 debt-to-equity ratio is not deductible as an expense and can also lead to some negative tax consequences for the non-resident shareholder. To take advantage of the deduction of the full amount of interest, share capital must be of a high enough amount to meet the mandated ratio.
Under the transfer pricing rules in the Income Tax Acts, the Canada Revenue Agency (CRA) can adjust a Canadian taxpayer's income and apply penalties for qualifying transactions between related resident and non-resident persons. The CRA will examine whether the terms and conditions of the transaction would have been made by parties dealing at arm's length, or whether the transaction would not have been entered into by parties dealing at arm's length but for the tax benefits.
For more information on tax on corporate transactions see: Practical Law Tax on Corporate Transactions Global Guide.
Grants and tax incentives
There are a number of grants and tax incentives offered to businesses by both the federal and provincial governments. Some notable initiatives include:
Innovation and research & development tax credits: Canadian businesses are incentivised to conduct research and development in Canada through various means such as the Scientific Research and Experimental Development Program and the Ontario Research and Development Tax Credit.
Regional funding: provincial and federal governments provide funding for economic development in particular regions such as Northern Ontario and Atlantic Canada.
Apprenticeship, training and education tax credits: tax credits are offered to businesses that take on and new apprentices and students.
Industry-specific tax credits: tax credits are offered to promote innovation and competitiveness in industries including aerospace, automotive, clean technology, information technology, manufacturing, and mining industries.
The federal government also supports the financing of foreign and small business enterprises through:
Export Development Canada: provides risk insurance for Canadian exporters, loans to foreign purchasers of Canadian capital goods and guarantees to Canadian banks for export loans along with management training programmes.
Business Development Bank of Canada: provides loans to small to medium-sized Canadian businesses.
Employment law in Canada is a complex mix of contract, statute and the common law or, in Quebec, civil law. Employment law in Canada is provincially-regulated, with the exception of federally-regulated industries such as banks, telecommunications, railways and airlines. Courts in Canada are unwilling to enforce agreements that may be perceived to be unfair to employees. The courts have made several broad statements regarding the primacy of work in the life of the individual, the inherent imbalance of power between individuals and their employees and the duty that all employers have to administer the employment relationship in good faith. They consistently apply these principles to any litigation between an employer and its former employee.
Employment standards legislation
Employment agreements cannot be used to contract out of employment standards legislation and will be voided for doing so. These statutes prescribe certain minimum entitlements for employees working in that province.
Minimum wage, working hours and overtime
Each province has a minimum wage rate as well as overtime pay requirements, unless the relevant role is managerial or subject to an exemption based on the profession (for example, IT workers, lawyers, and so on).
There are daily and weekly limits on the number of hours that an employee can work. Employees are also entitled to have a certain amount of rest between scheduled shifts. The maximum number of daily and weekly hours of work varies from province to province. In Ontario, it is eight hours a day and 48 hours per week. Certain professions and industries are exempted from these working hour limits.
Annual leave, holidays and leaves of absence
Provincial legislation mandates both annual leave and paid statutory holidays. There are between nine and 11 statutory holidays each year, depending on the province. Employees are entitled to at least two weeks of annual leave each year in most provinces.
All provinces in Canada provide employees with certain job-protected leaves of absence, including pregnancy and parental leave. Other leaves of absence vary by province but include leaves to attend to ill or dying family members, personal emergencies, organ donor procedures and military duties. All of these leaves are unpaid. Employers cannot penalise employees for making use of these statutory leaves.
Termination and severance
Unless there is just cause for the termination, every employee is entitled to notice of termination or payment in lieu of that notice. The notice that is given must be reasonable under the circumstances. A "reasonable notice of termination" takes into account the age, length of employment, compensation and position of the affected employee.
Certain statutory minimums must be satisfied in the event of a "without cause" termination. The length of service determines this minimum amount of severance, usually between one and eight weeks. Some provinces including Ontario provide enhanced termination entitlements to employees meeting certain criteria. Employers may need to extend benefits coverage for a period of time following termination.
Other legislation affecting employment
Other legislation affecting employment includes:
Pay equity. Some provinces mandate that women and men be paid the same for performing substantially the same work.
Human Rights. Every province has a Human Rights Code that prohibits discrimination on enumerated grounds, such as age ancestry, race, ethnic origin, place of origin, citizenship, creed, colour, religion, sex, sexual orientation, marital status, family status, record of offences, disability and age. These measures are enforced by tribunals and commissions that can award pecuniary and non-pecuniary penalties.
Occupational health and safety. The Occupational Health and Safety Act of each province imposes duties on employers and employees to ensure that a workplace is operated in a safe and healthy manner. Breaches of occupational health and safety standards could result in significant fines and even prison time.
Workplace safety and insurance. Each province has a provincial workplace insurance fund that provides health care benefits and compensation for lost earnings to employees who have been injured on the job. This is a no-fault scheme that prevents workers from seeking legal action against their employers. Employers contribute to the fund based on the industry and claims history. Employees are entitled to return to a job of the same level when they have returned from their injuries.
Unions. Employees in Canada have a right to become a member of a trade union. Certified trade unions are allowed to bargain exclusively for their members. An employer must engage with them in good faith.
Privacy. Privacy legislation regulates employers' collection, use and disclosure of employees' personal information. Canada also recognises torts of the invasion of privacy and intrusion on seclusion. Employers should be mindful of an employee's reasonable expectation of privacy under common law.
Individuals who wish to work in Canada must meet the regulations outlined in the Immigration and Refugee Protection Act (IRPA). Foreign nationals cannot enter Canada to work without first obtaining a work permit. The IRPA gives preference to those workers who have arranged employment that is valid on the dates they intend to begin their residence in Canada.
Proposals for reform
There are the following relevant developments in Canadian law:
National Securities Regulation. Canada is the only G20 country without a national securities regulator. The federal government has proposed a national scheme, Cooperative Capital Markets Regulatory System, which is aimed at streamlining provincial securities laws. This scheme requires the enactment of a uniform law for securities regulation in each participating province or territory. At present, the following jurisdictions are engaged in the implementation of the co-operative system: Ontario, British Columbia, Saskatchewan, New Brunswick, Prince Edward Island, and the Yukon. This federal-provincial alliance seeks to strengthen Canadian capital markets, protect investors and fight white collar crime and is expected to be operational by autumn 2016.
Changes to take-over bid regime. Canada's corporate take-over regime has the reputation of favouring bidders. In response, the Canadian Securities Administrators has proposed amendments to the take-over bid regime. The proposal includes the imposition of a minimum tender requirement of 50% of the outstanding securities targeted by the bid. It would also extend the time allowed for a bid to ten days after the minimum tender requirement has been satisfied. Finally, the minimum deposit period has been extended to 120 days. These proposed changes would allow target company shareholders to withstand pressure by the bidder, develop their response, and seek alternative bids, if necessary.
Aboriginal title in Canada. The case law surrounding aboriginal land title issues continues to evolve, as demonstrated by the seminal 2014 Supreme Court decisions in Grassy Narrows First Nation v. Ontario (Natural Resources) and Tsilhqot'in Nation v. British Columbia. Further development in this area can be expected in the years to come and investors (particularly in the natural resources sector) need to stay abreast of such changes which can fundamentally impact business opportunities and decision-making.
The regulatory authorities
Main activities. Oversees federal incorporation, bankruptcy, permits and licences, consumer exports and imports, intellectual property and financing for smaller businesses.
Ministry of Government Services (Ontario)
Main activities. Oversees provincial incorporation in Ontario. Similar ministries exist in all other provinces and territories.
Canada Revenue Agency
Main activities. Regulates all federal taxation and collects most provincial income and sales taxes. Also provides important tax incentives for businesses and investors.
Ontario Securities Commission
Main activities. The largest of the provincial securities commissions. Regulates all publicly-listed companies that trade on the Toronto Stock Exchange or TSX Venture Exchange.
TSX and TSX Venture Exchange
Main activities. The largest stock exchange group in Canada. Companies must meet their minimum listing requirements.
Business Development Bank of Canada
Main activities. A Crown Corporations that assists with financing for businesses in Canada and provides support tools for entrepreneurs.
Export Development Canada
Main activities. Canada's export credit agency that helps Canadian companies respond to international business opportunities.
Cooperative Capital Markets Regulatory System
Main Activities. The Cooperative System is designed to streamline the capital markets regulatory framework to protect investors, foster efficient capital markets and manage systemic risk while preserving strengths of the current system.
Description. The Canadian Legal Information Institute. Maintained by the Federation of Law Societies in Canada, this is a free online resource for up-to-date official Canadian legislation and case law.
Marc Mercier, Partner
Cassels Brock & Blackwell LLP
Professional qualifications. Attorney, Ontario Bar (1993)
Areas of practice. Business law; commercial law; corporate law; energy and utilities, lending and finance; infrastructure; private equity; project finance; restructuring and insolvency; derivatives and structured finance.
Bryan Woodman, Associate
Cassels Brock & Blackwell LLP
Professional qualifications. Attorney, Ontario Bar (2014)
Areas of practice. Business law; commercial law; corporate law; lending and finance.