In the digital age, going paperless seems like an obvious choice for many corporations. As corporations move toward electronic documents, it is important to keep in mind that there are legal requirements for documents. This article outlines the requirements for electronic documents under the Canada Not-for-Profit Corporations Act.
Creation of Documents
Under the Canada Not-for-Profit Corporations Act ("CNCA"), information to be created can be created electronically as long as it is not prohibited in the by-laws of the corporation. Thus, minutes of meetings and corporate registers can be created electronically.
Where the CNCA requires that a document be created "in writing", then the document must also be usable for subsequent reference. In other words, the corporation must keep a copy of the electronic document that it can access in the future.
Some of the provisions in the CNCA that require documents to be in writing include:
- Director consent to hold office
- Written resolutions signed by all of the directors
- Written resolutions signed by all of the members
- Director's disclosures of conflicts of interest
- Waiving notice or time requirements
- Appointing of a proxyholder
Where a document requires a signature, then it can be signed electronically if the person uses a technology or process that permits the user to attach or incorporate the person's signature that is unique to that user and the technology or a process can be used to identify the user. However, if the electronic document is a statutory declaration or affidavit required under the CNCA, then the person must use a secure electronic signature, as defined under Canada's Personal Information Protection and Electronic Documents Act ("PIPEDA").
Providing Documents
Where the CNCA requires the provision of information or documents, a corporation can provide the information by an electronic document if:
- the by-laws of the corporation do not provide otherwise;
- the recipient consents in writing to receive documents electronically and has provided an email or electronic address to receive electronic documents; and
- where the CNCA requires information to be provided in writing, then the electronic document must be accessible by the recipient and also be capable of being retained by the recipient for subsequent reference.
The electronic document can be sent to the recipient at his or her designated electronic address, or the corporation can post the information on a generally accessible source, such as a website and notify the recipients in writing of the availability and location of the document. Where the document is to be provided to more than one individual, the corporation must send the electronic documents to all addressees concurrently. A requirement to send one or more copy of a document, can be satisfied by sending a single copy of an electronic document. Under these provisions, a corporation can send an electronic copy or summary of the financial statements to the corporation's members.
A recipient can revoke his or her consent to receive electronic documents. If there is no valid consent, then the corporation would not be able to send electronic documents to that individual, therefore, the corporation must be attentive to whether there is valid and continuing consent from the addressee and keep an updated list of email addresses of members who have consented.
The one exception to these rules is the notice of a members' meeting. This notice can be sent electronically if it is allowed in the corporation's by-laws. An individual's consent is not required to send an electronic notice of a members' meeting. However, the corporation cannot send the notice of a members' meeting electronically to members who request this notice be given by non-electronic means.
Exceptions
There are a few instances where paper is still required. Any item that must be sent by registered mail under the CNCA cannot be sent electronically. For example, a director can dissent to a matter by registered mail and this cannot be done electronically.
Second, these provisions do not apply to documents to be sent to the Director of the CNCA. However, the Director can establish forms that can be sent electronically under a separate section of the CNCA.
Electronic Records
Some documents, such as the minute books and registers of a corporation, must be maintained at the corporation's registered office in Canada. Under the Income Tax Act (Canada), entities must maintain various records for specific periods of time. The Canada Revenue Agency ("CRA") takes the position that registered charities must keep their records on a server located in Canada. (We have written about this topic in a previous issue of our newsletter.) The Electronic documents must also be in a format that permits CRA to process and analyze the records using CRA software. More information on CRA's requirements for electronic documents can be found here.
PIPEDA also requires that electronic documents be maintained in a readable format that does not change the information in the document and retains information about the origin, destination, date and time the document was sent or received. Corporations must also be aware that the Canada Evidence Act applies if the electronic documents are ever to be used as evidence, but there is a presumption of integrity of the document if the integrity of the electronic document storage system is demonstrated.
Conclusion
Corporations that are not ready to go paperless need not worry. Nothing in the CNCA requires corporations to create or send electronic documents.
For those corporations that are paperless or are moving toward a paperless corporation, it is important to understand the legal requirements around creating and sending electronic documents. Corporations should get written consent to send electronic documents and maintain their electronic documents in a readily accessible and readable format with appropriate electronic signatures, dates, and times.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
