1. What Is The Legal System (Civil Law, Common Law Or A Mixture Of Both)?
British Columbia has a common law legal system and is regulated by:
provincial statutes that apply exclusively within the province; and
federal statutes that apply across Canada.
2. Are There Any Restrictions On Foreign Investment (Including Authorisations Required By Central Or Local Government)?
British Columbia does not impose any general stand-alone restrictions on foreign investment. General issues of foreign investment are governed by the federal Investment Canada Act.
3. Are There Any Exchange Control Or Currency Regulations?
There are no exchange control or currency regulations.
4. What Grants Or Incentives Are Available To Investors? Are Any Of These Aimed Specifically At Foreign Investors?
British Columbia provides provincial tax credits, exemptions, refunds, and deductions to encourage business investment and innovation, including for research and development, mining exploration, film and television production, new media and international financial activities. Sales and property tax exemptions are available for the purchase of certain machinery. Federal government incentives are also available.
5. What Is The Most Common Form Of Business Vehicle Used By Foreign Companies To Conduct Business In Your Jurisdiction?
In relation to this vehicle, please provide details on:
- Registration formalities (including timing).
- Minimum (and maximum) share capital.
- Whether shares can be issued for non-cash consideration, such as assets or services (and any formalities).
- Any restrictions on the rights that can attach to shares.
- Any restrictions on foreign shareholders.
- Management structure and any restrictions on foreign managers.
- Directors' liability.
- Parent company liability.
- Reporting requirements (including filing of accounts) and cost of compliance.
The most common form of business vehicle used by foreign companies is the corporation. Corporations can be incorporated under the provincial Business Corporations Act (British Columbia). However, corporations can also be incorporated federally under the Canada Business Corporations Act. The following applies to corporations incorporated in British Columbia:
Registration formalities. The corporate name must first be reserved with the Registrar of Companies. The incorporators then enter into an incorporation agreement and file an incorporation application with the Registrar of Companies. These filings, together with payment of the requisite fee, are carried out electronically.
Share capital. There can be one or more classes of shares, which can be issued in different series. Shares may be issued with or without par value. While it is not necessary to prescribe a maximum number of shares, it is possible to do so.
Non-cash consideration. Consideration can take the form of past services, property, and/or money. The value of the consideration received must equal or exceed the issue price set for the share.
Rights attaching to shares. A corporation can set out in its articles various rights attaching to its shares, including:
- share of assets on liquidation or dissolution;
- priority on liquidation or dissolution; and
- conversion, redemption and retraction.
Rights can vary among different classes of shares.
Foreign shareholders. There are no restrictions preventing foreigners from being shareholders.
Management structure. A corporation must have at least one director and a public corporation must have at least three directors. Once a corporation has been created the shareholders elect a board of directors to be responsible for management of the corporation. There are no residency requirements for directors.
Directors' liability. Directors of corporations operating in British Columbia are subject to a number of potential forms of liability arising from various federal and provincial legislation, as well as common law, which include:
- liability for breach of fiduciary duties owing to the corporation, its shareholders, and potentially other stakeholders, which duties require directors to act honestly and in good faith with a view to the best interests of the company, and to exercise the care, diligence and skill that a reasonably prudent individual would exercise in comparable circumstances;
- liability for wages and related benefits, wrongful dismissal, termination pay, workplace safety and protection fines, human rights violations, and sexual harassment; and
- liability for unpaid taxes and certain government remittances.
Parent company liability. Shareholders are not liable for a subsidiary's obligations.
Reporting requirements. Corporations are required to:
- file notices as to changes in directors;
- file an annual report; and
- make annual accounting records available for inspection.
For public corporations, regardless of where they are incorporated, the provincial Securities Act imposes additional reporting requirements that include:
- annual information forms;
- press releases;
- information circular for shareholders' meetings;
- acquisition reporting requirements; and
- security distribution requirements.
6. What Are The Main Laws Regulating Employment Relationships?
Employment relationships in British Columbia are mainly governed by the following, which apply to all employers and employees of provincially regulated businesses in British Columbia unless stated otherwise (federal equivalents apply to employees of federal undertakings in British Columbia):
Labour Relations Code, which governs the employment relationship for unionized work forces;
Employment Standards Act, which sets out the minimum standards that apply in most work places in British Columbia. The Act does not apply to students, volunteers or members of professional associations and specifically prohibits contracting out of any of its minimum standard requirements;
Human Rights Code, which protects individuals and groups against any conduct that adversely discriminates on the basis of any of the grounds protected by the Code, including race, sex and religion. Parties cannot contract out of the requirements of the Code;
Workers' Compensation Act, which provides insurance coverage to workers who suffer workplace injuries or occupational diseases, and protects employers from lawsuits from workers affected by the economic hardship caused by work-related injuries or disease. The legislation applies to all employers and workers in British Columbia, except as exempted by Worksafe BC;
Freedom of Information and Protection of Privacy Act, which governs the collection, use and disclosure of personal information including employee personal information by public employers;
Personal Information Protection Act, which governs the collection, use and disclosure of personal information including employee information by private employers; and
Once a foreign employee obtains a work permit, that employee is then subject to the laws and standards applicable in British Columbia.
7. Is A Written Contract Of Employment Required? Are Any Agreements And/Or Implied Terms Likely To Govern The Employment Relationship?
A written contract is not usually required, but it is often recommended. Certain terms are implied into employment relationships. For example, it is an implied term in employment contracts that the employer is to provide the employee with a safe workplace and that the employee is entitled to pay for work done. Another implied term of every employment contract is that an employer must provide reasonable notice of termination to an employee unless the employer has just cause for termination, unless the written employment contract provides otherwise.
8. Are Employees Entitled To Management Representation And/Or To Be Consulted In Relation To Corporate Transactions (Such As Redundancies And Disposals)?
Except for unionized workplaces, employees are not entitled to management representation or to be consulted in relation to corporate transactions.
9. How Is The Termination Of Individual Employment Contracts Regulated?
If an employee is dismissed for other than just cause, the employer must provide the employee with a period of notice which complies with the requirements pursuant to the Employment Standards Act and the common law, subject to the terms of an employment contract. Employers can also provide pay in lieu of notice, rather than actual notice.
Reasonable notice is determined by considering a number of factors, including an employee's:
length of service;
There is no standard common law amount of notice that an employer is required to give. However, in most cases an employee is entitled to roughly between one week and one month of notice per year of service. This implied term may be defeated by a written employment contract that provides for notice or pay in lieu of notice on termination so long as the amount of notice meets or exceeds the minimum amount required by the Employment Standards Act, which are:
one week's notice or pay in lieu, after three consecutive months of employment;
two weeks' notice or pay in lieu, after 12 consecutive months of employment;
three weeks' notice or pay in lieu, after 3 consecutive years of employment; and
one additional week or pay in lieu for every additional year to a maximum of eight weeks notice.
If an employee is dismissed for just cause, the employer is not obliged to provide the employee with a period of notice pursuant to the Employment Standards Act or the common law.
Examples of just cause may include:
continued incompetence or neglect of duty (after specific warnings).
If a court determines that the employer has acted in bad faith in the manner of terminating the employee, the employee may be entitled to additional damages.
Unionised employees have much stronger protection against unjust dismissal under the Labour Relations Code. For example, if the employer terminates an employee and an arbitrator determines that the employer did not have just cause, the arbitrator is empowered to reinstate the employee (with or without back pay).
If an employer breaches the provincial Human Rights Code in terminating an employee, such employer may be exposed to liability for that breach as well.
10. Are Redundancies/Mass Layoffs Regulated? If So, Please Give Details.
A redundancy is not just cause for termination. Under the Employment Standards Act, while an employer can temporarily layoff an employee for redundancy or for economic reasons without giving notice, where the temporary layoff exceeds 13 out of 20 weeks, the layoff is deemed to be a termination, and the employer must pay the applicable notice period under the Employment Standards Act.
Mass layoffs are regulated under the Employment Standards Act and the Labour Relations Code.
Under the Employment Standards Act, if the employment of 50 or more employees at a single location is to be terminated within any 2 month period, the employer must give written notice of group termination to all of the following:
- each employee who will be affected;
- a trade union certified to represent, or recognized by the employer as the bargaining agent of, any affected employees;
- the Minister of Labour;
The notice of group termination must specify the number of employees affected, the effective date(s) and reason(s) for termination.
The notice of group termination, or pay in lieu of notice increases with the number of employees terminated:
at least eight weeks before the effective date of the first termination, if 50 to 100 employees will be affected;
at least 12 weeks before the effective date of the first termination, if 101 to 300 employees will be affected; and
at least 16 weeks before the effective date of the first termination, if 301 or more employees will be affected.
The group termination notice and termination pay requirements are in addition to the employer's liability, if any, to the employee in respect of individual notice under the Employment Standards Act or under the collective agreement as the case may be.
Under the Labour Relations Code, for unionised workplaces, there is an additional obligation on employers to provide 60-days' notice of changes that negatively affect the job security of a significant number of employees to whom a collective agreement applies. Often the notice periods between the Labour Relations Code and the Employment Standards Act will coincide.
11. Do Foreign Employees Require Work Permits And/Or Residency Permits? If So, How Long Does It Take To Obtain Them And How Much Do They Cost?
TO WORK TEMPORARILY IN CANADA, FOREIGN NATIONALS REQUIRE A WORK AUTHORISATION, COMMONLY KNOWN AS A WORK PERMIT (CAN$150). IF THE FOREIGN NATIONAL IS FROM A COUNTRY THAT IS A PARTY TO THE CANADIAN VISA WAIVER PROGRAMME, APPLICATIONS FOR WORK PERMITS CAN BE MADE IN PERSON AT A CANADIAN PORT OF ENTRY (LAND, AIR OR SEA) AND THERE IS NO NEED TO APPLY FOR A TEMPORARY RESIDENT VISA. HOWEVER, IF THE FOREIGN NATIONAL IS FROM A COUNTRY THAT IS NOT A PARTY TO THIS PROGRAMME, THEY MUST APPLY FOR BOTH THEIR WORK PERMIT AND A TEMPORARY RESIDENT VISA (ADDITIONAL COST OF CAN$75 FOR SINGLE ENTRY AND CAN$150 FOR A MULTIPLE ENTRY VISA) THROUGH A FOREIGN VISA OFFICE. DEPENDING WHERE THE APPLICATION IS SUBMITTED, PROCESSING TIMES RANGE FROM TWO DAYS TO THREE MONTHS.
12. In Relation To Employees, What Constitutes Tax Residency In Your Jurisdiction?
Generally, an individual is subject to provincial tax on his worldwide income from all sources if the individual is resident in British Columbia on 31 December of the particular taxation year. An individual is considered to be resident in the province where he has significant residential ties.
13. What Income Tax Or Social Security Contributions Must The Following Pay:
- Tax resident employees?
- Non-tax resident employees?
- Employers, in relation to their employees?
Tax resident employees. A person who is resident in British Columbia (see Question 12) during a taxation year is subject to the following taxes on his worldwide income from all sources:
Federal income tax. Federal income tax rates in 2008 are as follows:
- 15% on taxable income less than or equal to Can$37,885;
- 22% on taxable income greater than Can$37,885 and less than or equal to Can$75,769;
- 26% on taxable income greater than Can$75,770 and less than or equal to Can$123,184;
- 29% on taxable income greater than Can$123,184; and
Provincial income tax. Provincial income tax rates in 2008 are as follows:
- 5.24% on taxable income less than or equal to Can$35,016;
- 7.98% on taxable income greater than Can$35,016 and less than or equal to Can$70,033;
- 10.5% on taxable income greater than Can$70,033 and less than or equal to Can$80,406;
- 12.29% on taxable income greater than Can$80,406 and less than or equal to Can$97,636; and
- 14.7% on taxable income greater than Can$97,636.
Canada Pension Plan (CPP). The contribution rate is 4.95%, payable on earnings up to a maximum of Can$44,900 and with a basic personal exemption of Can$3,500.
Employment Insurance (EI). This is payable at 1.73% on earnings up to Can$41,100.
Non-tax resident employees. Generally, a non-tax resident is taxed on his British Columbia source income at the same rates as a tax resident.
Employers. Employers are required by federal law to deduct certain amounts from the income of their employees for EI premiums, CPP contributions and income tax.
14. In Relation To Business Vehicles, What Constitutes Tax Residency In Your Jurisdiction?
The common law test of residency for a corporation is that it is resident where its central management and control is situated. The federal Income Tax Act provides that a corporation incorporated in Canada after 26 April 1965, is deemed to be a resident in Canada throughout its taxation year. A corporation is also deemed to be a resident of Canada if:
before 18 June 1971, it was a foreign business corporation that was controlled by a corporation resident in Canada;
during the ten-year period ending on 18 June 1971, it carried on business in a country other than Canada but during this period paid dividends to shareholders resident in Canada on which the shareholders paid tax to the government of the other country; or
at any time in the taxation year or in any preceding taxation year commencing after 1971, it was resident in Canada or carried on business in Canada.
15. Please Give Details On The Main Taxes That Potentially Apply To A Tax Resident Business Vehicle (Including Rates).
A corporation resident in Canada is taxable on its worldwide income. Generally, the federal corporate income tax rate in 2008 for general income is 19.5% and the British Columbia tax is 11%.
16. How Are The Activities Of Non-Tax Resident Business Vehicles Taxed?
A non-resident corporation is subject to tax under the federal Income Tax Act, on its taxable income from carrying on a business in Canada and from the disposition of taxable Canadian property.
17. Please Explain How Each Of The Following Is Taxed:
- Dividends paid to foreign corporate shareholders.
- Dividends received from foreign companies.
- Interest paid to foreign corporate shareholders.
- Intellectual property (IP) royalties paid to foreign corporate shareholders.
Dividends paid. These are generally subject to non-resident withholding tax at the rate of 25%.
Dividends received. A person resident in Canada must include dividends paid by a foreign corporation in his taxable income. A corporation resident in Canada may, in computing taxable income, deduct dividends paid by a controlled foreign affiliate which are paid out of the exempt surplus of the foreign corporation.
Arm's Length Interest paid. This is generally not subject to non-resident withholding tax.
IP royalties paid. These are generally subject to non-resident withholding tax at the rate of 25%.
18. Are There Any Thin Capitalisation Rules (Restrictions On Loans From Foreign Affiliates)? If So, Please Give Details.
The federal Income Tax Act contains thin capitalisation rules which restrict the deductibility of interest on certain loans from foreign affiliates to the extent that the loan exceeds twice the capital of the corporation.
19. Must The Profits Of A Foreign Subsidiary Be Imputed To A Parent Company That Is Tax Resident In Your Jurisdiction (Controlled Foreign Company Rules)?
The federal Income Tax Act contains controlled foreign corporation rules which require that a resident taxpayer include in his income for a taxation year the participating percentage of foreign accrual property income of every share owned by the taxpayer in a controlled foreign affiliate.
20. Are There Any Transfer Pricing Rules? If So, Please Give Details.
There are transfer pricing rules in the federal Income Tax Act, which generally provide that where a taxpayer and a non-arm's length non-resident person enter into one or more transactions and where:
the consideration paid in the transaction is not an arm's-length amount, the consideration paid will be deemed to be the arm's-length amount; or
the transaction is not one which would have been entered into had the parties been at arm's length and it may reasonably be considered that the transaction was not entered into other than to obtain a tax benefit, the nature of the transaction entered into will be deemed to be that which would have been entered into had the parties been at arm's length.
21. How Are Imports And Exports Taxed?
The federal Customs Act imposes liability for customs duties on a person who reports the importation of the goods calculated on the basis of the value for duty of the goods as is determined under the rules contained in the federal Customs Act.
The federal Excise Tax Act requires every person who is liable to pay duty on goods imported into Canada or who would be liable to pay duty if the goods were dutiable, to pay Goods and Services Tax (GST) at 5% on the value of the goods. An importer of record is therefore generally required to pay GST on imported goods. A registrant who imports goods can recover GST paid on such imports to the extent they are imported for use in the registrant's commercial activities. Input tax credits on imported goods are claimed in the same manner as for domestic purposes.
Special rules are provided for imports of goods into Canada by unregistered non-resident vendors. Under the federal Excise Tax Act, recipients of certain imported services and intangible personal property must self-assess tax and may be able to recover GST paid on the same basis as described above.
The provincial Social Service Tax Act imposes a retail sales tax of 7% on purchases and leases of tangible personal property brought into the province for the consumption or use of the purchaser or lessee.
22. Are Restrictive Agreements And Practices Regulated By Competition Law In Your Jurisdiction? If So, Please Give Brief Details.
The federal Competition Act governs most business conduct in Canada. It contains both criminal and civil provisions aimed at preventing anti-competitive practices in the Canadian marketplace.
23. Please outline the main intellectual property rights that are capable of protection in your jurisdiction. In each case, please state:
- Nature Of Right.
- How Protected.
- How Enforced.
- Length Of Protection.
Nature of right. Under the federal Patent Act, in order to patent an invention, it must:
- be novel;
- possess utility; and
- not be obvious.
How protected. A patent application must be filed with the Canadian Intellectual Property Office.
How enforced. The patentee can sue the patent infringer for damages.
Length of protection. Patents last for 20 years from the filing date provided the prescribed maintenance fees are paid. In rare circumstances, the life of patent rights can be extended by an act of Parliament according an extension of a particular patent to a particular patent holder.
Nature of right. Rights arise in a trade mark in Canada as soon as it is used in association with wares or services.
How protected. A trade mark holder can, under the common law action for passing off, prevent subsequent use of the same or a confusingly similar trade mark for similar wares and/or services. However, without registration under the federal Trade-marks Act such protection is limited to the geographic area in which there can be said to be reputation in the trade mark. Only registration under the federal Trade-marks Act, with the Canadian Intellectual Property Office, gives the full protection available by law. It also allows an action to be brought in any court of competent jurisdiction to prevent depreciation of goodwill in the trade mark.
How enforced. The right holder can sue under common law and/or the Trade-marks Act, the latter of which empowers a court to grant injunctive relief and the recovery of damages or profits where justified.
Length of protection. A trade-mark is valid for 15 years, but can be renewed indefinitely.
Nature of right. To qualify for protection, a design must:
- be original; and
- not have been published in Canada or elsewhere more than one year before the filing date.
How protected. Protection is through registration, under the federal Industrial Design Act, with the Canadian Intellectual Property Office which examines applications on a "first-to-file" basis.
How enforced. The right holder can sue for infringement under the federal Industrial Design Act, which provides that the court may make orders for relief by way of injunction and/or the recovery of damages or profits.
Length of protection. The owner of a registered industrial design has exclusive rights to it for ten years, provided the prescribed maintenance fees are paid.
Nature of right. There are four categories of works which are protected by copyright law:
- literary works;
- artistic works;
- dramatic works; and
- musical works.
Copyright does not exist in ideas themselves, but only in the original, fixed expression of ideas.
How protected. Copyright automatically subsists in a work in Canada on the creation of an original work (whether or not the work was published), if at the time the work was created, the author was:
- a Canadian citizen;
- a British subject; or
- a citizen of a country that is a member of an international agreement for the protection of copyright to which Canada is a party.
Although registration of copyright is not necessary, it is prudent. A registration application must be filed with the Canadian Intellectual Property Office.
How enforced. Copyright can be enforced by the copyright holder through common law remedies and/or federal Copyright Act remedies such as injunctive, monetary, and/or other forms of relief.
Length of protection. In most works, copyright subsists for the life of the author, plus 50 years. If a work was not published before the death of the author, copyright will subsist until publication and for a period of 50 years after publication.
Nature of right. Trade secrets and other confidential information is maintained in strict confidence by the owner of such information and such owners rely on contractual obligations placed on the recipients of the information to ensure information protection. The legal protection of trade secrets and confidential information from disclosure and unauthorised use is based on court rulings under common law.
How protected. Generally, to be protected, the information in question must have been acquired in circumstances that produce an obligation of confidence. The most common example is the employer-employee relationship.
How enforced. Owners of trade secrets may seek redress through the courts in certain circumstances if their secrets are disclosed or misused. The grounds for redress often include breach of confidence and fiduciary duty under common law. There is a duty on the owner of trade secrets to document their creation and use, as well as the measures taken to keep them confidential.
Length of protection. The length of trade secret protection depends on the owner's ability to maintain the information in confidence.
24. Are Marketing Agreements Regulated In Your Jurisdiction? If So, Please Give Brief Details In Respect Of The Following Arrangements:
Agency. While there is no specific legislation governing agency in British Columbia, people who act as agents/brokers in certain industries are regulated by specific legislation, including the:
- provincial Real Estate Services Act;
- provincial Mortgage Brokers Act; and
- provincial Securities Act;
Distribution. There is no specific legislation governing distribution in British Columbia.
Franchising. There is no specific legislation governing franchising in British Columbia.
25. Are There Any Laws Regulating E-Commerce (Such As Electronic Signatures And Distance Selling)? If So, Please Give Brief Details.
E-commerce is principally regulated in British Columbia by the:
Provincial Electronic Transactions Act.
Provincial Business Paper Reduction Act.
Federal Personal Information Protection and Electronic Documents Act (PIPEDA).
The provincial Electronic Transactions Act sets out rules for conducting business transactions electronically and governs the validity of electronic contracts and electronic signatures. Under the Act, unless the parties to an electronic contract agree otherwise, an offer or the acceptance of an offer may be expressed by means of information or a record in electronic form, or by an activity in electronic form, including touching or clicking on an icon or place on a computer screen, or otherwise communicating electronically in a manner that is intended to express the offer or acceptance.
Subject to certain exceptions, if there is a requirement under law for the signature of a person, that requirement is satisfied by an electronic signature. An electronic signature means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to, or associated with the record. A person is not required to provide or receive information or a record in electronic form without the person's consent. However, such consent may be inferred from the person's conduct.
In addition to the Electronic Transactions Act, PIPEDA, which applies to companies that operate under federal jurisdiction (that is, shipping companies, railways, airlines, banks and telecommunications companies), provides numerous guidelines relating to electronic signatures.
26. Are There Any Data Protection Laws? If So, Please Give Brief Details.
The provincial Freedom of Information and Protection of Privacy Act restricts the collection, use and disclosure of personal information by public bodies and creates a set of rules by which public bodies must abide when responding to access to information requests.
The provincial Personal Information Protection Act ("PIPA") sets out ground rules for how private sector organizations in British Columbia can collect, use or disclose personal information. Under PIPA, an organization can only collect, use or disclose personal information if it has advised the individual of the organization's purpose for such collection, use or disclosure and has obtained the consent of the individual.
PIPEDA applies to federal works, undertakings or businesses operating in the province, and to inter-provincial and international personal information flows in the course of commercial activities.
27. Are There Any Laws Regulating Product Liability And Product Safety? If So, Please Give Brief Details.
Generally, under common law, product manufacturers have a post-sale duty to warn consumers and users of their products of defects and dangers that become known to the manufacturer after its products were manufactured and sold into the marketplace. In addition, post-sale duties for certain types of products exist under common law.
1. With acknowledgements to Brooke Harley and Ron Chin.
About Trevor Scott
Trevor Scott is a solicitor at Farris and provides strategic and legal advice in diverse business areas. He has extensive experience in debt and equity financings for public and private companies, representing both issuers and investment banks. He also regularly advises on business acquisitions, divestments and take-over bids, including compliance issues with the Competition Act and assisting foreign investors with Investment Canada Act matters. Trevor also advises on corporate governance matters.
About Michael Korbin
Michael practises labour and employment law. He represents employers in all aspects of labour and employment law disputes, including: arbitrations; labour board hearings; human rights matters; workers compensation matters; employment standards matters; and wrongful dismissal actions.
About James Hatton
James Hatton is a commercial solicitor with 20 years experience in assisting companies to exploit the value of their intellectual property assets, focussing on licensing and related transactions.
James is the partner responsible for the Technology Group at Farris, Vaughan, Wills & Murphy LLP, the law firm identified by Lexpert magazine as the top corporate law firm and the top litigation firm in Vancouver, British Columbia.