What's New

• Author: Jasmine Salamon
• Date: November 14, 2022

Effective January 1, 2023, the Ontario Business Corporations Act (OBCA), will be amended to require that all Ontario private corporations create and maintain a registry of ‘individuals with significant control’ (ISC).

In this article, we answer five frequently asked questions regarding the new Ontario ISC registry requirements so that you can ensure your corporation stays compliant.

 

1. Who is an “Individual with Significant Control”?

Under the OBCA, an “individual with significant control” is someone who:

• is the registered or beneficial owner, or has director or indirect control over, any number of shares that either:
  • carry 25% or more voting control of the corporation, or
  • equal 25% or more of the corporation’s outstanding shares by fair market value of the corporation;
• has direct or indirect influence that, if exercised, would result in control of the corporation; or
• is an individual to whom prescribed circumstances by regulation apply (note: as of yet, there have been no prescribed circumstances announced or put forward).

Note that joint ownership or control of a significant number of shares may also be a factor in determining whether the person is an ISC. For example, Mel B, Victoria, Emma, Melanie, and Geri all own 20% of Spice Co’s voting shares. If there is no voting agreement between any of the shareholders, then none of them would qualify as an ISC. However, if Victoria and Emma have an agreement to vote in the same fashion, then both of them would now be considered an ISC, since together they control more than 25% of the voting shares. Similarly, if they have a shareholders agreement which directs how voting is to be handled, then all members of the shareholders agreement would qualify as an ISC and would need to be recorded as such.

 

2. What information must be included?

The ISC Register must contain all of the following information for each and every individual with significant control over the corporation:

• name, date of birth, and last known address;
• jurisdiction of residence, for tax purposes;
• the day in which the person began, and if applicable, ceases to be, an individual with significant control;
• a description of why and how the person is an individual with significant control, and if applicable, a description of their interests and rights in respect of shares of the corporation;
• a description of each step taken to confirm that all individuals have been identified, and that the information is accurate and up to date; and
• any other prescribed information (as may be set out in regulations).

 

3. Who can access the register?

The ISC Register must be kept at the corporation’s registered office, or at another place within Ontario designated by the directors of the corporation. In most situations, similar to the other registers and ledgers required to be kept, a corporation will likely keep its ISC Register in its Minute Book. However, if your Minute Book is kept at your lawyer’s office, we recommend also keeping a copy for yourself, this way you can regularly review it to ensure the information is up to date and accurate.

While the ISC Register will not generally be available to the public, similar to other registers kept by the corporation certain governmental authorities (e.g., law enforcement agencies, taxing authorities, and other regulatory bodies) may request disclosure of the register for certain investigatory and enforcement purposes.

4. What do I need to do?

In addition to identifying all ISCs and recording their information within the new register, corporations must also regularly update the register. This means that, at least once during each fiscal year, the corporation will need to take active steps to ensure that all individuals with significant control have been identified and that the information in the register is accurate, complete and up to date.

When it comes to updating the ISC Register, any changes to the information  will need to be recorded within 15 days of the directors becoming aware of any new or updated information.

On a related note, where someone ceases to be an ISC (a “Prior ISC”), for example by selling all of their shares in the corporation, the corporation will have one year from the sixth anniversary of a person ceasing to be an ISC to appropriately dispose of any information collected about the Prior ISC in compliance with section 2(1) of the Personal Information Protection and Electronic Documents Act (Canada).

 

5. What happens if a corporation fails to comply?

Failure to comply with the ISC Register requirements can have significant consequences. In particular,

• any director or officer who knowingly authorizes, permits, or acquiesces in the corporation’s failure to maintain the register, in the recording of false or misleading information in the register, or provides any person or entity false or misleading information relating to the register, and
• any shareholder who knowingly contravenes its obligation to reply accurately and completely to a request for information from the corporation,

will have committed an offence under the OBCA, which, on conviction, could result in the individual being personally liable for a fine of up to $200,000.00, imprisonment for a term of up to 6 months, or both.

 

Please note: The above information summarizes the requirements for corporations incorporated under the Business Corporations Act (Ontario) only. If your corporation was incorporated or continued under the Canada Business Corporations Act, or the laws of another province, you should consult with a lawyer directly regarding compliance with that jurisdiction’s specific requirements, as the above information may not be transferrable.

 

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Properly maintaining a corporation can be complicated. While this article is intended to provide information on Ontario’s newest requirement, the ISC Register, there are many other documents, registers, and ledgers which must be maintained and kept with your corporation’s minute book. If you need help updating or preparing your corporation’s records, get in touch with a our experienced team of business lawyers at CARREL+Partners today.

 

Disclaimer:

This publication is for general information purposes and is not to be taken as legal advice. The information within is current only to the date of publishing. If you have any questions regarding article content, please contact the author(s) directly.