Opening the books: Public access to ISC information under the CBCA

9 minute read
28 May 2024

Recent amendments to the Canada Business Corporations Act ("CBCA") have significantly changed Canada's beneficial ownership transparency requirements. Corporations Canada now requires the filing of information on individuals with significant control over a corporation ("ISCs"). Certain information filed with Corporations Canada will now be made available to the public by way of a free, publicly accessible registry.

These changes to the CBCA's beneficial ownership requirements bring the federal regime in line with those of other jurisdictions that have moved towards the public disclosure of beneficial owners.



Background

On June 13, 2019, the CBCA was amended to require private corporations governed by the CBCA to create and maintain a register of individuals with significant control over the corporation (an "ISC Register"). The amendments were introduced to encourage greater corporate transparency and as a means to combat nefarious activity, such as money laundering and tax evasion.

Under the CBCA, an ISC is defined as an individual who (i) is a registered or beneficial owner of, or (ii) has direct or indirect control over, a significant number of shares of the corporation. A significant number of shares is defined as (i) 25 per cent or more of the outstanding shares of the corporation measured by fair market value, or (ii) 25 per cent or more of the voting rights attached to all of the corporation's outstanding shares (for more information, see our previous article: "Behind the Corporate Veil: New Ownership Record Rules in Canada").

Prior to January 22, 2024, private CBCA corporations were not required to disclose their ISC Registers to the public; corporations were only required to disclose the register to shareholders and creditors, investigative bodies and Corporations Canada, if requested.

Public ISC Registers unpacked: What they mean for you and your business

Following amendments to the CBCA that came into force on January 22, 2024, private CBCA corporations are now required to submit information from their ISC Register to Corporations Canada. That ISC information must be filed with Corporations Canada (i) with their annual return; (ii) within 15 days of any change made in their ISC Register; (iii) during incorporation; (iv) after amalgamation; and (v) after continuance to the federal jurisdiction.

Importantly, even corporations previously exempt from maintaining an ISC Register, such as public companies existing under the CBCA, must now file an annual confirmation of such exemption and provide the grounds for their exemption when filing their annual return.

Subject to limited exceptions, the CBCA amendments will see certain ISC information made public on Corporations Canada's website, including:

  • Their name
  • Their address for service, if provided to the corporation
  • Their residential address, if their address for service has not been provided to the corporation
  • The day on which the individual became or ceased to be an individual with significant control, as applicable
  • A description of how the individual is an individual with significant control over the corporation

However, not all ISC Register information will be public. The following ISC information will not be made publicly available:

  • Date of birth
  • Country (or countries) of citizenship
  • Country (or countries) where the ISC is considered a resident for tax purposes
  • Residential address (if an alternate address for service is provided)

Note that ISCs who wish to keep their residential address private should provide an alternate address for service in the ISC Register. By doing so, the ISC's residential address will not be disclosed on Corporations Canada's website.

Non-compliance with ISC requirements: Harsher penalties

The January 2024 amendments also introduced more stringent penalties for contraventions of the ISC requirements. Under the new legislation, a director or officer of a corporation who knowingly authorizes, permits, or acquiesces in the contravention of the corporation's ISC reporting obligations commits an offence.

A director or officer found guilty of this offence is subject to a maximum fine of $1,000,000 – up from the previous maximum fine of $200,000 – and/or imprisonment for a term up to five years – up from the previous maximum term of six months. Further, a corporation that contravenes the new ISC reporting obligations, without reasonable cause, is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

In addition, if a private CBCA corporation does not comply with its ISC Register obligations, Corporations Canada may (1) refuse to issue a certificate of compliance; or (2) administratively dissolve a corporation that either (i) is in default for more than one year; or (ii) fails to file ISC information within 30 days of an amalgamation or continuance under the CBCA.

Given that these amendments are still relatively new there is limited data indicating how strongly the punitive measures are being or will be enforced going forward. However, considering the severity of the penalties available under the CBCA, it is highly recommended that corporations that are not compliant take the necessary actions to become so as soon as possible.

What are other jurisdictions doing?

The federal government is not the first to introduce the concept of a public beneficial ownership register in Canada. Similar to the amendments to the CBCA, in May 2023, the British Columbia government amended the Business Corporations Act ("BCBCA") for the purposes of creating a public registry, disclosing certain information about "significant individuals" with control over the corporation. The changes, once in force, will require private companies incorporated under the BCBCA to submit this information to the British Columbia Registrar of Companies. The public registry is expected to be available by 2025.

It is noteworthy that the BCBCA amendments introduce enforcement officers who are authorized to confirm that a corporation is in compliance with the disclosure requirements. In carrying out their duties, enforcement officers may impose administrative penalties of up to $25,000 for individuals and $50,000 for corporations.

Similar corporate transparency requirements have been in effect since March 31, 2023 in Québec, where private corporations must file certain information regarding the "ultimate beneficiaries." This information is then made available to the public by the Registraire des entreprises du Québec. One important difference between the new CBCA requirements and those in place in Québec is that corporations doing business in Québec, whether incorporated in or outside the province, are required to file the information on the corporation's ultimate beneficiaries.

The various beneficial ownership regimes in British Columbia, Québec and now at the federal level move Canada closer to its European cousins, where similar regimes have existed in the UK and other European jurisdictions since 2016/2017. The register system in the UK, for instance, is publicly accessible for free through Companies House.

Following a judgement delivered on November 22, 2022 where the Court of Justice of the European Union held that, in view of the Charter of Fundamental Rights of the European Union, the provision of the Anti-Money Laundering Directive under which EU member states are required to make information on the corporation's beneficial owners accessible to the public is invalid, Italy, Germany and other European member states have restricted public access to the register system only to those with "legitimate interests."

Moving forward

The January 2024 amendments to the CBCA will require private CBCA corporations to be more diligent in the preparation and maintenance of their ISC Register, and shareholders of private CBCA corporations should be aware that certain information about them and their investment will be made publicly available if they are an ISC.

It remains to be seen whether other Canadian jurisdictions will follow suit and adopt measures allowing for public access to certain ISC information. Such public disclosure of ISC information is well established practice in the EU and UK, and these amendments to the CBCA may be the first of many similar changes across the provinces in the near future. As such, while corporations can currently forum shop to find a Canadian jurisdiction that has no publicly accessible ISC database, it may only be a matter of time before the entire country is brought more in line with the European regime.

If you have any questions about the new amendments and their impact on your business, or if you are looking for assistance preparing or maintaining your corporation's ISC Register, please contact one of the authors or a member of Gowling WLG's Corporate Practice Group.


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