Registre de transparence en Ontario : règles à connaître avant l'échéance du 1er janvier 2023 (article en anglais)

Effective from Jan. 1, 2023, private corporations incorporated under the Ontario Business Corporations Act (OBCA) will need to maintain a register of individuals with significant control (ISCs).

The ISC register aims to provide law enforcement and regulatory authorities with access to information about the controlling minds of private corporations, and follows similar amendments recently introduced under the Canada Business Corporations Act (CBCA) and the British Columbia Business Corporations Act.

Background

Over the past few years there has been a global trend towards increasing transparency around privately held entities to help fight corporate crime (including tax evasion). The introduction of the ISC register in Ontario not only brings Ontario up to speed with requirements that already exist under the CBCA and in some other Canadian jurisdictions, but is also in line with more established transparency regimes in the UK^[1] and the EU.^[2]

Private corporations incorporated under the OBCA will need to take steps before the end of the year to ensure they are in compliance with the new requirements.

What entities are affected by the new OBCA requirements?

The new ISC register requirements only apply to private corporations. Public corporations (including wholly-owned subsidiaries) are exempt as they are already subject to robust disclosure obligations under securities laws. One significant difference from the CBCA regime is that the CBCA does not currently exempt subsidiaries of public corporations. However, regulations under the CBCA are currently in the process of being amended to, among other things, exempt wholly-owned subsidiaries of public corporations.

What is the ISC register and what is on it?

The ISC register is a record containing the name, date of birth, latest known address, and jurisdiction of tax residence of each ISC. The register should also contain the day that each ISC became or ceased to be an ISC, a description of what makes each individual on the ISC register an ISC (i.e. their interest in or influence over a significant number of shares), and a description of steps taken to update the register at least once each financial year. Updates to the ISC register must be recorded within 15 days of the discovery of new information, and shareholders knowingly providing false information may receive a fine of up to $200,000 or imprisonment for up to six months.

The ISC register may be kept at the corporation's registered address, but the directors have discretion to keep it elsewhere within Ontario. The ISC register is not to be filed with the government.

Who qualifies as an ISC?

"Significant control" means an interest in a significant number of the shares of the corporation. A "significant number" of shares means either (i) shares carrying 25 per cent or more of the voting rights attached to all of the corporation's shares, or (ii) shares representing 25 per cent or more of the corporation's total outstanding shares by fair market value.

Interest in a significant number of shares doesn't have to be outright or direct legal ownership. An ISC may be (i) the registered holder of a significant number of shares, (ii) the beneficial owner of a significant number of shares, or (iii) someone with direct or indirect control over a significant number of shares.

Besides interest in a significant number of shares, an individual is an ISC if they wield direct or indirect influence over the corporation which, if exercised, would in fact result in control of the corporation (for example, a major non-arm's length management services provider or supplier, or a minority investor with certain contractual control rights). Influence for this purpose is to be determined in light of all the circumstances, and doesn't have to include a legal right or ability (i) to change the composition or powers of the board of directors, or (ii) to influence the shareholders who have a legal right or ability to change the composition or powers of the board.

This definition is so broad that it would have covered individuals who are counterparties to many types of commercial contracts with the corporation. In recognition of this, individuals are excluded from the ISC definition if they deal with the corporation at arm's length under a franchise, licence, lease, distribution, supply or management agreement or other similar agreement or arrangement.

Additionally, joint ownership qualifies for classification as an ISC. If two or more individuals together have an interest in a significant number of shares, each of them will need to be disclosed on the ISC register. If two or more persons falling within certain categories of "related persons" as defined by the OBCA (i.e. spouse, children, or relatives of a person or the person's spouse who live with the person) together have an interest in a significant number of shares, each of them must be disclosed on the ISC register as well.

Who can access the ISC register?

The statute empowers certain persons to access and copy the ISC register of private corporations. They include the following:

1. Law enforcement – the police or First Nations Constable, for the purpose of investigating an offence under Ontario or Canadian law, or providing information to law enforcement in another country which has a law enforcement assistance arrangement with Ontario or Canada;
2. Tax administration – an Ontario or federal tax administration official (i.e. Canada Revenue Agency (CRA)), for the purpose of administering or enforcing Ontario or Canadian tax law, or providing information to the tax authority of another country which has a tax administration assistance arrangement with Ontario or Canada; and
3. Regulatory bodies – specifically the Ontario Securities Commission (OSC), Financial Services Regulatory Authority of Ontario (FSRA), Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), or other prescribed officer or body established under Ontario or federal law in Canada, for the purpose of administering the law for which they are responsible, or of assisting another agency in Canada in administering or enforcing a similar law, or providing information to an agency in another country which has a regulatory assistance arrangement with Ontario or Canada.

Unlike certain other corporate records which shareholders of a private corporation have a right to inspect and take extracts from without charge, shareholders have no statutory right to the ISC register.

How does privacy law apply to the ISC register?

The personal information collected in connection with the ISC register should be kept in accordance with applicable privacy law.

After the sixth anniversary of the day on which an individual ceases to be an ISC, their personal information must be disposed of within one year. The OBCA amendments specifically reiterate that this disposal be in accordance with Canada's privacy statute, the Personal Information Protection and Electronic Documents Act.

Action points for corporate compliance teams

Every Ontario private corporation should make preparations to be in compliance with the ISC register requirements when they kick in. Some things you can do include the following:

1. identify who the ISCs are (if any), from your existing shareholder register and any other sources;
2. prepare a template questionnaire for requesting personal information from ISCs;
3. reach out to identified ISCs to provide or update their personal information; and
4. put mechanisms in place to monitor and update the ISC register and respond to any law enforcement or regulatory requests related to the register once the new requirements become effective.

Conclusion

Although the new Ontario transparency rules will increase corporate compliance costs and effort, they are less burdensome than those in some other jurisdictions. For instance, unlike Ontario where the register is to be maintained at the corporation's offices, the US regime, which will be effective from January 2024, and the Quebec regime, which will be effective from March 2023, both have a requirement to file the ISC information with the government. Amendments to the CBCA that are not yet in effect will also require a filing. In addition, whereas the Ontario rules only apply to private corporations, the UK transparency rules also apply to limited liability partnerships, and the EU rules apply broadly to all legal entities, including partnerships and trusts. Indeed, some may argue that the Ontario regime doesn't go far enough in achieving its aim of supporting law enforcement and regulatory authorities.