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Exemption Information Kits - Overview
Policy Statement 6.1
|
Description of Exemption | Section | Status |
---|---|---|
Distributing Corporation | 2(6) | Revised |
Trust Indenture | 82(3) | Revised |
Proxy Solicitation (Management) | 151(1) | Revised |
Proxy solicitation (Dissident Shareholder) | 151(1) | Revised |
Reporting of Financial Statements | 156 | Revised |
Audit Committee | 171(2) | Revised |
Description of Exemption | Section | Status |
---|---|---|
Name of Corporation | 10(2) | Not planned |
Where continued reference to par value shares permissible | 187(11) | Not planned |
Description of Exemption | Section | Status |
---|---|---|
Qualification of Auditor | 161(5) | Not planned |
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Distributing Corporation: Certain provisions in the CBCA apply only to distributing corporations and are devised to safeguard the interests of security holders and other stakeholders. However, it is recognized that situations exist where strict adherence to these provisions neither serves the interests of the security holders, nor the corporation, nor any other stakeholder. Subsection 2(6) of the CBCA provides the Director with the authority to determine that a corporation is not, or was not a distributing corporation, if the Director is satisfied that such a determination would not be prejudicial to the public. Circumstances in which the Director is likely to grant such an exemption are listed in the revised subsection 2(6) information kit.
Trust Indenture – Part VIII: Subsection 82(3) of the CBCA states that the Director may exempt a trust indenture if the debt obligations issued and the security interests effected by the indenture are subject to a law of a province or of a foreign country that is substantially equivalent to Part VIII of the CBCA. The major factor in granting an exemption is whether the degree of protection offered to investors is substantially equivalent to the protection that would be given if the trust indenture were subject to the requirements of the CBCA. Typically, exemptions have been granted where the applicant has satisfied the Director that this is the situation and, in the case of foreign offerings, when the debt securities will not be available for sale in Canada. Precedents have been established for the United States.
Proxy solicitation (management and dissident): Subsection 151(1) of the CBCA provides that the Director may exempt a corporation or dissident (usually a shareholder) from any of the requirements of Section 149 or subsection 150(1). Section 149 and subsection 150(1) provide that the management of a distributing corporation must send a "form of proxy" and a "proxy circular" to all shareholders entitled to receive notice of the meeting when the number of shareholders entitled to vote at the meeting is more than 50. Subsection 150(1) also applies to a dissident and provides that a dissident must send a dissident proxy circular. The "form of proxy" and "proxy circular" must contain the information prescribed in Sections 54 to 69 of the Regulations. Corporations and dissidents whose applications provide evidence that shareholders would not be prejudiced by the granting of an exemption are generally successful in receiving either complete or partial exemptions. An information kit is available for the exemption from the requirement to send management proxy solicitation and a separate information kit is available for the exemption from the requirement to send proxy circulars by a dissident.
Reporting of Financial Statements: Section 155 imposes requirements concerning financial statements to be presented to the shareholders at the annual meeting and the frequency with which they must be updated. The content and preparation of financial statements must comply with the requirements of Sections 70 to 72 of the Regulations. These sections require that the financial statements must be prepared in accordance with the provisions of the Canadian Institute of Chartered Accountants' Handbook and must contain a balance sheet, a statement of retained earnings, an income statement and a statement of the change in financial position.
Section 156 states that the Director may authorize a corporation to omit from its financial statements any item prescribed, or to dispense with the publication of any particular financial statement prescribed. The Director will generally permit these omissions, on such reasonable grounds as he thinks fit, if the Director believes that the financial information thus revealed would be detrimental to the corporation. An information kit is available for those corporations requiring an exemption under Section 156.
Audit Committee: Subsection 171(1) of the CBCA states that a distributing corporation must have an audit committee if the corporation's securities are held by more than one person. The audit committee thus established must comprise a minimum of three directors of the corporation where at least two of these directors are neither employees of the corporation nor any of its affiliates. Subsection 171(2) states that if the Director is satisfied that the shareholders will not be prejudiced, then an exemption may be issued which exempts the corporation from the requirement to establish an audit committee.
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Name of Corporation: Subsection 10(2) permits the Director to exempt a corporation continuing under the CBCA from the requirements of subsection 10(1): that the name of the corporation include the word or expression "Limited", "Limitée", "Incorporated", "Incorporée", "Corporation", "Société par actions de régime fédéral" or its corresponding abbreviation. There is no kit for this type of exemption as it has been rarely sought. Most exemptions have been granted to corporations incorporated under Special Acts when they were continuing under the CBCA and whose name was already well-known to the Canadian public, for example "Bell Canada".
Where continued reference to par value shares permissible: Where the Director determines, on the application of an importing body corporate, that it is not practicable to change a reference to the nominal or par value of shares of a class or series that the body corporate was authorized to issue before it was continued under the CBCA, subsection 187(11) states that the Director may permit the corporation to refer in its articles to those shares, whether issued or unissued, as shares having a nominal or par value. No kit is available as this exemption is rarely requested.
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Qualification of Auditor:
An interested person may apply to a court pursuant to subsection
161(5) for an order exempting an auditor from the need to be
independent. For example, the court order would provide that the
comptroller of the parent company could act as auditor. Note
however that shareholders of all non-distributing corporations
may resolve not to appoint an auditor, in which case no
exemption application would be necessary. There is no kit for
this type of exemption. Note that the CBCA does not require that
a notice of application be sent to the Director.
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Section 258.2 gives the Director, CBCA authority to make a blanket exemption for notices or documents required to be sent to the Director where the information contained in the notice or document is similar to that required to be made public pursuant to another act of Parliament or of a legislature that the Director specifies.
Pursuant to this authority, the Director has issued the Single Filing Exemption providing that proxy materials and financial statements required to be filed with the Director pursuant to Sections 150 and 160 of the CBCA, need not be filed if documents containing similar information have been filed with any of the participating provincial and territorial securities commissions. Corporations do not need to notify the Director in order to rely on this exemption.
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Created: 2005-05-29 Updated: 2005-11-01 |
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