|
|
 |
Continuance (Export) Kit
Policy Statement 9.4
February 18, 2005
This policy replaces policy 9.4 dated October 27, 2003. This policy
reflects the changes made to the Canada Business Corporation
Act and the Canada Business Corporations Regulations
(2001) which came into force on November 24, 2001.
This kit is intended as a guide to users only, and does not replace or
take precedence over the CBCA.
The purpose of this kit is to help you submit the information required
for obtaining approval for exporting your corporation to another
jurisdiction in Canada or another country and thereby discontinuing it
under the Canada Business Corporations Act (CBCA).
A CBCA
corporation may also wish to continue under another federal statute
such as the Bank Act, the Canada Cooperatives Act,
the Insurance Companies Act or the Trust and Loan
Companies Act (see subsection188(2) of the
CBCA).
In this kit, you will find:
-
general information about the role of the Corporations Canada
-
information on steps to obtain a Certificate of Discontinuance
under the CBCA
-
some practical suggestions regarding what information you need to
file with the Director under the CBCA
(the "Director") to effect an export.
We suggest that you consult with a legal counsel or other professional advisers when considering export continuance.
Return to the Table of Contents
(To another jurisdiction, whether a province of Canada or another
country)
In order for a CBCA
corporation to export to another (non-federal)
jurisdiction, whether in Canada or another country, there is a
two-step procedure the applicant must follow:
-
You must obtain from the Director under the
CBCA a Letter of
Satisfaction that you submit to the authorities of the importing
jurisdiction (see subsection 188(1) of the
CBCA) together with any
continuance documents that may be required. This letter states that
the Director is satisfied that the continuance will not adversely
affect creditors or shareholders of the corporation. The Letter of
Satisfaction is valid for 90 days.
-
In the second step, if the authorities of the importing
jurisdiction accept your application for continuance, they will
issue you some kind of documentation such as a Certificate of
Continuance indicating that your corporation is duly continued
under that legislation as if it had been incorporated under that
statute. You must then give satisfactory notice of this continuance
to the Director, who will issue a Certificate of Discontinuance
(see subsection 188(7) of the
CBCA). This completes the export
process.
Return to the Table of Contents
Letters of Satisfaction are issued at the discretion of the Director.
The principal concerns of the Director regarding an export action are
whether the export:
-
is legally possible
-
has been duly authorized by the corporation
-
will not adversely affect creditors or shareholders of the
corporation
-
a corporation wishing to export must also be in good standing under
the CBCA.
This means that the corporation must be up to date with
filings of annual returns and financial statements, if applicable,
and it must not be subject to a current investigation for
non-compliance.
For guidance on how the Director is likely to exercise this discretion
in typical situations, please refer to the Policy of the Director as
to "Export" Transactions under the
CBCA (Export Policy).
This document is available through Corporations Canada's website
under the left bar heading "Forms, Policies, Fees and Legislation".
Unless the Director receives complaints by persons who feel themselves
to be adversely affected or oppressed by the transaction, a Letter of
Satisfaction will normally be issued upon receipt of your
documentation completed as described below.
Return to the Table of Contents
-
If exporting to continue into the following (non-federal)
jurisdictions in Canada:
-
Alberta
-
British Columbia
-
Manitoba
-
New Brunswick
-
Nova Scotia
-
Ontario
-
Saskatchewan
-
Newfoundland and Labrador
-
Yukon
-
-
you need to send to the Director:
-
a letter from a representative of your corporation stating
that a special resolution of the shareholders authorizing the
export has been passed as required by subsection 188(5) of
the CBCA.
-
a filing fee of $200.00, payable to the Receiver General for
Canada.
-
-
If exporting to continue into another (non federal) jurisdiction in
Canada or another country, you must send to the Director the
following:
-
a copy of relevant excerpts from the legislation of the
importing jurisdiction
-
an opinion from counsel qualified to provide opinions on the
law of the non-federal jurisdiction of the importing
jurisdiction that the law of that jurisdiction
-
permits import of a CBCA corporation, and
-
provides for the rights set out in subsection 188(10)
of the CBCA;
-
an affidavit of an authorized director or officer stating
that:
-
shareholders and creditors will not be adversely
affected,
-
export has been authorized by special resolution of
shareholders of the corporation
-
shareholders have been given full disclosure of effect
of export on their rights and interests
-
if there are any dissenters, a statement of a director or
officer that the corporation
-
will undertake to honour the dissent right granted by
s. 190 and if necessary to turn to the Canadian courts
for that purpose
-
has sufficient funds to pay dissenting shareholders and
that arrangements have been made to ensure that those
funds will be available to satisfy that claim
-
a filing fee of $200.00, payable to the Receiver General for
Canada.
Return to the Table of Contents
-
Once a Letter of Satisfaction has been issued, the applicant
wishing to export to another (non federal) jurisdiction, whether in
Canada or another country must proceed with the second step.
-
If the authorities of the importing jurisdiction accept the
application for continuance, they will issue to the applicant a
document such as a Certificate of Continuance as proof that the
corporation has been continued in the other (importing)
jurisdiction. The applicant must submit a copy of the Certificate
of Continuance to the Director who in turn will issue a Certificate
of Discontinuance to the applicant.
-
Take note that certain jurisdictions will send a copy of the
Certificate of the document certifying continuance directly to the
Director. However, the onus is on you to ensure that the Director
receives notice of the continuance by one means or another.
-
Upon receiving such notice, the Director will issue a Certificate
of Discontinuance dated retroactively to the date of effectiveness
of the Certificate of Continuance. The
CBCA ceases to apply to the
corporation on that date.
- There is no fee for the issuance of a Certificate of Discontinuance.
-
A notice will be published on the Corporations Canada website regarding your corporation's discontinuance under the
CBCA, showing the date of effectiveness.
Return to the Table of Contents
Applications that are deficient or incomplete will be returned to the
applicant with a deficiency letter stating the nature of the
deficiency.
Return to the Table of Contents
By fax
You can submit your documents by sending them by fax at (613)
941-0999. The $200 fee for the Letter of Satisfaction must be paid by credit card (American Express®,
MasterCard® or Visa®) or deposited to an account opened with
Industry Canada.
The Letter of Satisfaction and the Certificate of Continuance will be
sent to you by fax.
By mail or courier
You can file the necessary documents and pay the $200 fee for the Letter of Satisfaction by sending
them to the following address:
Corporations Canada
Industry Canada
9th floor, Jean Edmonds Tower South
365, Laurier Avenue West
Ottawa, Ontario, K1A 0C8
The $200 fee must be paid by cheque payable to the Receiver General
for Canada, by credit card (American Express®,
MasterCard® or Visa®) or by deposit to an account opened with Industry Canada.
The Letter of Satisfaction from the Director and the Certificate of
Discontinuance will be sent to you by mail or by the delivery method
requested.
Return to the Table of Contents
Bank Act, Insurance Companies Act and Trust
and Loan Companies Act
-
Some corporations, because of the nature of their business, must be
incorporated under the Bank Act, the Insurance Companies Act or the
Trust and Loan Companies Act. These acts are administered by the
Office of the Superintendent of Financial Institutions Canada
(OSFI) rather than by the Director.
-
The shareholders of a corporation wishing to export to
OSFI
legislation must first authorize the move in a special resolution.
Then, an application for continuance should be made directly to
OSFI at:
Office of the Superintendent of Financial Institutions Canada
Kent Square
255 Albert Street
Ottawa, Ontario K1A 0H2
Tel.: (613) 990-7788
-
OSFI will provide advance notice to the Director that an
application for a proposed export continuance has been made. This
action will permit the Director to bring to the attention of the
Minister of Finance, before the continuance is approved, any matter
the Director considers relevant or important.
-
After this review, if the Director has no concerns, or once any
concerns raised by the Director are settled to the satisfaction of
both OSFI and the
Director, OSFI will issue Letters Patent of
Continuance and send a copy of them to the Director, indicating
that a continuance under OSFI
legislation occurred on a certain
date. Upon receipt, the Director will file the notice and will
issue a Certificate of Discontinuance to the
CBCA corporation,
dated the effective date of the continuance.
-
A notice will be published on the Corporations Canada website
Canada Cooperatives Act
-
Some corporations, because of the nature of their business, must be
incorporated under the Canada Cooperatives Act (COOP Act). This Act
is administered by the Director under the COOP Act) Act, the same person
who holds the office of Director under the CBCA.
-
The shareholders of a corporation wishing to export to the COOP Act) Act
must first authorize the move in a special resolution. Then, an
application for continuance under this Act should be made directly
to the Director under the COOP Act) Act. A reading of the statute and
the relevant information kit is suggested to ensure you meet the
requirements of the cooperative legislation.
-
If the application is satisfactory, the Director under the COOP Act) Act
will issue a Certificate of Continuation indicating that the CBCA
corporation has been continued under the COOP Act) Act and the Director
under the CBCA will issue a Certificate of Discontinuance to the
CBCA corporation, dated the effective date of the continuance.
-
A notice will be published on the
Corporations Canada website.
Return to the Table of Contents
If you would like to obtain more detailed information regarding
incorporation, please consult Corporations Canada's website.
As well, Corporations Canada publishes various kits containing
additional information about incorporation:
Amalgamation Kit
Amendment Kit
Continuance (Import) Kit
Dissolution Kit
Exemptions Kit
Incorporation Kit
Name-granting Guidelines
These publications are available on Corporations Canada's website, under the heading "Information Kits" in the "Forms, Policies, Fees and Legislation" section.
You may also contact the Corporations Canada at:
Corporations Canada
Client Services Unit
Industry Canada
9th Floor, Jean Edmonds Towers South
365 Laurier Avenue West
Ottawa, Ontario K1A 0C8
Toll-free line : 1-866-333-5556
Fax: (613) 941-0601
Return to the Table of Contents
|
Corporations Canada
