Canada Gazette, Part I, Volume 156, Number 44: Regulations Amending the Canada Business Corporations Regulations, 2001
October 29, 2022
Canada Business Corporations Act
Department of Industry
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Bill C-86, Budget Implementation Act, 2018, No. 2, amended the Canada Business Corporations Act (CBCA) to require private federally incorporated corporations to create and maintain a register of individuals with significant control (ISC Register).
Since the coming into force of the statutory amendments, stakeholders have indicated that the statutory amendments do not provide enough guidance and that more clarity is needed on how to apply the provisions in certain situations. For example, the ISC Register legislative provisions do not provide any information on what a corporation is to do if it cannot identify any individuals with significant control (ISCs) nor do they provide information on the reasonable steps a corporation is to take to update its ISC Register. Stakeholders have indicated that it would be useful to have directions on what these steps should be.
A lack of explicit directions on how to apply some of the statutory amendments could result in the provisions being applied inconsistently, which could affect the overall accuracy of the information in the ISC Register. For example, stakeholders have indicated that without an indication of the reasonable steps that a corporation should take to identify all of its ISCs, corporations would not know if they had met their obligations and may omit a required step that could have otherwise led the corporation to identify an unknown ISC.
The CBCA regulates federally incorporated Canadian businesses. It provides the corporate governance framework for many small and medium-sized Canadian corporations, as well as many of the largest corporations operating in Canada. The statute sets out rules pertaining to the creation of businesses incorporated at the federal level; the rights and responsibilities of management, the board, and shareholders; and financial accountability. The CBCA plays a key role in ensuring that investors have confidence in the way corporations are governed.
Increasing corporate transparency has been an ongoing international concern. In recent years, many countries have committed to corporate ownership transparency in order to safeguard against misusing corporations as vehicles for tax evasion and money laundering. Canada has committed to transparency as a member to a number of international organizations:
- the Financial Action Task Force (FATF);
- the Global Forum on Transparency and Exchange of Information for Tax Purposes of the Organisation for Economic Co-operation and Development (OECD); and
- the G7.
In 2018, the federal government amended the CBCA under Bill C-86 to require corporations to identify and document those who have ownership or control over them. The amendments to the CBCA came into force on June 13, 2019. As of that date, private corporations governed by the CBCA must keep a register of its ISCs. An ISC is someone who owns or controls a corporation. Each corporation must create and maintain an ISC Register, which is a document that contains information about each ISC of the corporation. The ISC Register provides greater transparency about who owns and controls Canadian corporations. It also helps law enforcement agencies detect and expose illegal activities such as money laundering and tax evasion.
Before the legislative amendments were made, a corporation only had to keep a register with the names of the corporation’s registered shareholders, called a shareholder register. A registered shareholder could be an individual, another corporation, or an entity such as a trust or partnership. The name of another corporation or entity provides little information as to who actually has ownership or control over the corporation. As for an individual who is listed as the registered shareholder, it is possible that this individual is acting on behalf of another unnamed individual. The shareholder register alone may not always provide the appropriate information to allow a corporation to know the individuals that have significant control over that corporation. Therefore, by requiring corporations to create and maintain an ISC Register, a corporation may need to take steps to identify its ISCs who are not registered shareholders.
To promote awareness of the new requirements, Innovation, Science and Economic Development Canada (ISED) provided details on the information that must be maintained in an ISC Register on its website. In addition, ISED held numerous sessions with businesses, and accounting and legal professionals from April to June 2019, where participants indicated a need for further directions.
The objective of the proposed amendments is to provide targeted stakeholders further directions with respect to meeting the legislative requirements regarding the ISC Register. The proposed amendments would assist in ensuring that the requirements around the ISC Register are consistently applied by stakeholders.
The proposed amendments would
- Exempt the following classes of corporations from having to create and maintain an ISC Register:
- wholly-owned subsidiaries of a corporation or of a Canadian body corporate that is a reporting issuer or listed on a designated stock exchange established by paragraph 21.1(7)(b) of the CBCA; and
- corporations that are wholly-owned by the Crown.
- Specify that a reasonable step to annually update the ISC register includes sending a notice to
- registered shareholders;
- any known individuals with significant control; and
- any other person that the corporation has reasonable cause to believe would have relevant knowledge in order to request information on known ISCs.
- Specify that if a corporation is unable to identify an ISC of the corporation, the corporation will set out the following in its ISC Register:
- a statement that the corporation has determined it is unable to identify any individuals with significant control over the corporation; and
- a summary of the steps taken to try to identify the corporation’s ISCs.
In spring 2019, ISED held numerous informal sessions on the new ISC legislative provisions with businesses, and accounting and legal professionals. While legislative amendments came into force in June 2019, these stakeholders indicated that there is a need to provide further guidance in the Canada Business Corporations Regulations, 2001 (the Regulations).
ISED also held a stakeholder consultation on the proposed regulatory amendments in spring 2020. A consultation paper was released on March 9, 2020, and stakeholders were invited to provide submissions until June 30, 2020. Seven submissions were received, including from legal and business professionals and non-governmental organizations. Generally, the feedback was favourable with stakeholders expressing support for the proposed amendments. However, some stakeholders commented that wholly-owned subsidiaries of not only public CBCA corporations but also of those incorporated under provincial or territorial laws should be exempt. In addition, they pointed out that it would not be useful to add the name of a director to the ISC Register when no ISCs were located because information related to directors is already readily available publicly and this would not address the ultimate purpose of the legislation, which is transparency of ownership.
Considering these comments, the proposed text of the amending provisions was modified to make it clear that wholly-owned subsidiaries of public CBCA corporations and of those incorporated under provincial or territorial laws would be exempt from the requirement to create and maintain an ISC Register. In addition, the proposed amendments would not include a requirement to add the name of a director to the ISC Register when no ISCs are located.
Modern treaty obligations and Indigenous engagement and consultation
The proposed amendments would not have any impact on modern treaties and are not expected to result in any disproportionate impacts on Indigenous groups.
Regulatory amendments are necessary in order to maintain consistency with the intent of the CBCA. Non-regulatory instruments, such as guidelines, cannot be made mandatory, are non-enforceable, and are often inconsistently applied. Prescribing the steps to be followed by corporations to meet the legislative requirements and exempting classes of corporations can only be done through regulatory amendments. Therefore, regulations were chosen as the instrument that would enable achieving these objectives.
Benefits and costs
Benefits to corporations — Exempting two additional classes of corporations from the ISC Register requirements would generate savings for corporations in those classes. Currently, these corporations are incurring costs to create and maintain their ISC Register. At the same time, the ISC Register information on the corporation’s ISCs is already available elsewhere. For example, for Crown corporations, ownership of the corporation is held by His Majesty the King, hence no further information on ownership would be necessary. As for wholly-owned subsidiaries of public Canadian corporations, the legislative amendments already exempt publicly held corporations because they are already subject to disclosure requirements under relevant securities laws. If a wholly-owned subsidiary is required to meet the ISC Register disclosure rules, the publicly held parent corporation would also be subject to those disclosure rules and would, in effect, have to identify their ISCs. Requiring these corporations to keep an ISC Register would provide no benefit and would defeat the purpose of the legislative exemption provided to public corporations. Therefore, the overall intent of the ISC regime would not be affected by exempting these two classes of corporations.
Corporations may also choose by which means to send the notice. Sending the notice electronically is expected to result in very little costs to the corporation compared to using other means. In addition, corporations can benefit from using the template notice that would be available on ISED’s website, further reducing costs. Corporations will therefore save on costs by sending notices electronically and using the proposed template.
There would be additional benefits to corporations as the proposed amendments would provide clear directions on what reasonable steps corporations should take to update their ISC Register annually and what they should do if they are unable to identify any ISCs. Currently, as per the applicable legislative provision, corporations must take prescribed steps if they are unable to identify any ISCs. However, those steps are currently not prescribed and there are no clear requirements regarding what a corporation must do if it is unable to identify any ISCs. The proposed amendment would operationalize the applicable legislative provision. They would also contribute to corporations having an ISC Register with more reliable information and would promote compliance.
Benefits to the Government — The proposed amendments are expected to result in minor qualitative benefits for the Government. Investigative bodies, such as law enforcement agencies and tax authorities, who might request access to a corporation’s ISC Register, would benefit from having fulsome information on a corporation’s ISCs.
Costs to corporations — The activities associated with sending a notice to shareholders to identify ISCs are expected to result in low costs for corporations. Corporations are already required to take reasonable steps to identify their ISCs. The proposed amendments would define more clearly what the reasonable steps should be. Large corporations with complex shareholding structures are expected to incur greater costs than small corporations as they may need to send notices to multiple recipients. Nevertheless, this cost is not expected to be significant. Small corporations, which are estimated to be more than 95% of all CBCA corporations, have a small shareholding structure typically consisting of one or two shareholders. Therefore, small corporations would incur negligible costs as the information on its ISCs would already be known to the corporation.
While performing their legislative obligations of maintaining the ISC Register, corporations who are unable to identify any ISCs would need to add a statement stating so in the ISC Register. Adding a statement to the ISC Register is expected to impose negligible costs on impacted corporations. Updating the ISC Register annually is a result of the legislative provisions and not of these proposed amendments.
Overall, the total cost on CBCA corporations to meet the proposed regulatory requirements is expected to be low.
Costs to the Government — These proposed amendments are expected to result in minor costs for the Government. These costs would be associated with preparing a model template notice and making it available to corporations through ISED’s website. Additional minor costs would be incurred for compliance promotion activities such as developing communication and awareness materials.
Small business lens
An analysis under the small business lens indicates that small businesses may incur minimal incremental compliance costs to meet the proposed regulatory requirements. A flexibility option was not considered for small businesses since they are typically owned by one or two shareholders and information on the corporation’s ISCs will be readily available. Small businesses would only require minor resources to send notices to the shareholders. Further, to assist small businesses, ISED intends to publish a model template notice that corporations may use. This would reduce the level of effort required to prepare the notice.
The one-for-one rule does not apply as there would not be any incremental change in the administrative burden on businesses. While businesses may incur new costs to comply with the proposed amendments (for example sending a notice to shareholders), these costs are not considered administrative burden for the purposes of the one-for-one rule as they would not be incurred to demonstrate compliance to the Government.
Regulatory cooperation and alignment
The ISC Register provisions in other jurisdictions were analyzed, including British Columbia, the United Kingdom (UK) and Singapore. Those three regimes have similar objectives to the CBCA ISC Register. However, there are differences in how these jurisdictions have chosen to operationalize their ISC Register provisions.
- In the UK, the information is maintained in a central registry run by Companies House (the UK government regulator). With respect to not finding an ISC, a corporation in the UK must note in its register that it knows or has reasonable cause to believe that there is no person with significant control.
- The Singapore legislation is similar to Canada’s legislation in that each corporation must maintain a register. Its law requires corporations to take reasonable steps, including sending a notice in order to identify its ISCs.
- British Columbia has enacted similar regulations relating to exempt corporations, steps to take in the event there are no ISCs, and steps to take to update annually the ISC register.
The proposed amendments were designed following a review of these jurisdictions with operational ISC Registers similar to Canada’s. The most optimal elements in those regimes (e.g. classes of exempt corporations; the sending of a notice; steps to take if there are no ISCs) were considered in developing the federal approach.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was conducted and it was determined that no group would be affected disproportionately by the proposed amendments.
Implementation, compliance and enforcement, and service standards
The proposed amendments would come into force on registration. ISED will communicate the new requirements to stakeholders through announcements and by providing information on its website.
There are no new compliance and enforcement, or service standards associated with these proposed amendments.
Acting Senior Policy Manager
Innovation, Science and Economic Development Canada
C.D. Howe Building
235 Queen Street
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Canada Business Corporations Regulations, 2001 under subsection 261(1)footnote a of the Canada Business Corporations Act footnote b.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Genevieve Gobeil, Acting Senior Policy Manager, Corporations Canada, Innovation, Science and Economic Development Canada, C.D. Howe Building, 235 Queen Street, Ottawa, Ontario K1A 0H5 (tel.: 1‑866‑333‑5556; email: email@example.com).
Ottawa, October 20, 2022
Assistant Clerk of the Privy Council
Regulations Amending the Canada Business Corporations Regulations, 2001
1 Subparagraph 2(1)(b)(ii) of the French version of the Canada Business Corporations Regulations, 2001 footnote 1 is replaced by the following:
- (ii) dont des valeurs mobilières sont cotées et négociables à une bourse au Canada ou à l’étranger,
2 The Regulations are amended by adding the following after section 32:
Individuals with Significant Control
33 (1) For the purpose of subsection 21.1(2) of the Act, reasonable steps taken by a corporation include sending a request for information
- (a) to any individuals listed in the register as individuals with significant control;
- (b) to its shareholders; and
- (c) to any other person that the corporation has reasonable grounds to believe may have relevant knowledge with respect to
- (i) an individual with significant control over the corporation, or
- (ii) another person that may have relevant knowledge with respect to such an individual.
(2) The corporation shall request that a person referred to in subsection (1) provide the corporation with the following information as soon as feasible and to the best of their knowledge:
- (a) in the case of an individual referred to in paragraph 1(a), any change to the information in the register about them;
- (b) in the case of a shareholder referred to in paragraph (1)(b), confirmation as to whether or not they have become an individual with significant control over the corporation; and
- (c) any contact information that they have with respect to a person referred to in subparagraph (1)(c)(i) or (ii).
34 For the purpose of section 21.2 of the Act, a corporation to which section 21.1 of the Act applies that is unable to identify any individuals with significant control over the corporation must set out the following in its register of individuals with significant control:
- (a) a statement to the effect that the corporation has determined that it is unable to identify any individuals with significant control over the corporation; and
- (b) a summary of the steps taken to try to identify these individuals.
34.1 For the purpose of paragraph 21.1(7)(c) of the Act, the following classes of corporations are prescribed:
- (a) wholly-owned subsidiaries of either a corporation, or a body corporate that is incorporated or continued under an Act of the legislature of a province
- (i) that is a reporting issuer or an émetteur assujetti under an Act of the legislature of a province relating to the regulation of securities, or
- (ii) any of the securities of which are listed and posted for trading on a designated stock exchange, as defined in subsection 248(1) of the Income Tax Act;
- (b) federal Crown corporations;
- (c) provincial Crown corporations; and
- (d) corporations whose shareholders consist solely of either
- (i) Her Majesty in right of more than one province, or
- (ii) Her Majesty in right of Canada and Her Majesty in right of one or more provinces.
Coming into Force
3 These Regulations come into force on the day on which they are registered.
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