Carrying On Business In Canada - A Practical Guide For Americans

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1. INTRODUCTION

The progressive liberalization of international trade and investment over the past two decades has generated new opportunities to expand business activities across national borders.

Canada has been at the forefront of this initiative, both globally, through participation in the World Trade Organization, and bilaterally, through its participation in the North American Free Trade Agreement and bilateral free trade agreements with each of Costa Rica, Chile, Israel and with South Korea. Details of the bilateral trade agreements that Canada is currently pursuing are summarized on page 9.1. In addition, Canada is a party to 23 bilateral investment treaties, the last of which was signed with Peru.

Cassels Brock has prepared this overview of the Canadian business environment to assist lawyers and businesspeople who are considering establishing a business in Canada.

The law firm of Cassels Brock (which dates its roots back to 1888) has over 195 lawyers located in Toronto, the capital of Ontario and the financial centre of Canada. Ontario is the largest of Canada's 10 provinces. Accordingly, this brochure emphasizes Ontario's business environment and laws. Pursuant to the October 2007 Canada census, Ontario has a population of approximately 12.8 million people (roughly 38% of Canada's 33.5 million population) and an area of 1,068,587 square kilometres. Given its immediate proximity to the US, there are approximately 160 million people within a two-day drive of Toronto.

Map Of Canada

Who Makes The Laws In Canada?

Canada has a parliamentary system of government, in which the political party that elects the greatest number of members to the legislative body (federally, the House of Commons, and provincially, the Legislature) is invited to form the government of the day. The federal Prime Minister and the provincial Premiers (the respective heads of the provincial governments) are elected by members of the political parties they represent. In each case, the cabinet is composed of elected members, and in some cases at the federal level, members of the Senate. This contrasts with the US system, where the individual with the greatest number of supporters in the Electoral College is declared the President and is then entitled to form a government from both elected and non-elected individuals.

As in the US, Canada is a federation with a written constitutionally based division of powers between the federal government and the provincial governments. Municipal governments derive their authority from the provincial governments.

Canada has two official languages, English and French, and all federal government services are available in both languages.

Federal Jurisdiction

The federal government has authority to make laws in areas of general interest to the country as a whole. For example, the federal government passes laws on income tax, banking, regulation of interprovincial and international trade, bankruptcy and insolvency, intellectual property, immigration, customs duties and crime.

Provincial Jurisdiction

Provincial governments have authority to make laws in many areas, including matters affecting real and personal property rights. For example, provincial governments pass laws relating to corporate securities, secured interests in personal property, the purchase and of interests in real estate, consumer protection, the incorporation of provincial companies, sales tax, insurance, the administration of the courts and enforcement of judgments.

Municipal Jurisdiction

Municipal governments have authority to make laws that are local in nature. For example, municipal governments pass laws relating to licensing requirements for conducting business within the municipality and zoning requirements affecting the use of land within the municipality.

Overlapping Jurisdictions

This three-tiered system often creates situations where overlapping levels of government regulation may address a single issue. For example, all three levels of government have enacted, subject to constitutional limitations, legislation, regulations or directives intended to protect the natural environment and to impose responsibility for the cost of cleaning up environmental damage. As well, the federal government and each of the provinces have a Business Corporations Act.

Obviously, it is important to be aware of changes in the laws at each of the federal, provincial and municipal levels.

What Is Canada's Legal System?

All provinces except Québec have a legal system based on the English common law tradition. Québec has a civil law legal system based on the Napoleonic Code. In a sense, this gives Canadian lawyers an advantage in that they are likely to be familiar with the underlying concepts of each of the two systems and can help bridge conflicts that arise in international transactions where both civil and common law legal systems play a role.

The Common Law

In Canada, there are many rules affecting the rights of parties conducting business in Canada. These rules derive from the judgments made every day in the courts of Canada. They form part of the law and are separate from statutes, regulations, by-laws and directives (the legislative enactments of governments). Over time, they are generally embodied in the practices observed by everyone, and are referred to as the common law.

The Québec Civil Code

The province of Québec has enacted a Civil Code containing written rules that govern such matters as the law of commerce in the province. Québec courts then interpret the Civil Code on a case-by-case basis.

Evolution Of The Legal System

Business in Canada operates through the interplay of a number of components:

Commercial Practice

In contracts and commercial transactions, such things as product innovation and changes in marketing approaches often produce changes in business practice. This has an impact on the form of agreements adopted by contracting parties.

The Common Law

The common law often evolves more slowly than does commercial practice. Courts tend to examine each commercial arrangement in relation to accepted and understood concepts and principles embodied in the existing common law and statutes. Sometimes, however, legal concepts are subject to unforeseen changes caused by unexpected judicial interpretations. This may arise as a result of unusual facts in a particular matter before the court. Because of costs, such decisions often are not appealed to higher courts for review. This can lead to some apparently conflicting decisions, exacerbated by the reluctance of courts to consider and issue rulings based on hypothetical fact situations. The rationale for foregoing is that the common law is advanced by parties litigating real issues with real consequences. This brings relevance to decisions that might otherwise be absent.

The Charter Of Rights And Freedoms

The federal Constitution Act was amended in 1982 to incorporate the Charter of Rights and Freedoms that imposes limitations on federal and provincial authorities in exercising their powers. No legislative action (including all legislation and regulations) or administrative proceeding (rulings) may be exercised by either Parliament or a provincial Legislature in a manner that would adversely affect the freedom of expression and association of individuals, certain rights of individuals with respect to the enforcement of laws and regulations and the equality of individuals under Canadian law. By far the greatest number of cases reported in Canadian law journals in the last 20 years deal with Charter issues.

Statutes, Regulations, By-laws And Directives

These legislative initiatives may be enacted by any of the three levels of government. Generally, statutes, regulations and directives will remain relatively unchanged over long periods of time. This creates a stable environment for business, but does not prevent the enactment of new laws at the discretion of the government. Apart from the statutes themselves, the manner in which they are enforced obviously has an important effect on those who are subject to the legislation. Generally, there is a great deal of discretion in the hands of public servants, although the courts have exhibited an ever-broadening appetite to review the manner in which legislative enactments are applied, to ensure that the discretion exercised by government officials and administrative bodies is transparent, fair, reasonable and within the intent of the legislative body that granted the discretion. New lobbyist legislation has been recently enacted by the federal government and the City of Toronto, to mixed reviews.

How Are Disputes Resolved In Canada's Legal System?

In Canada, there is a comprehensive court system for resolving commercial disputes. The judiciary system is fully independent from all levels of government and is comprised of federal and provincial courts. Judges of the courts in Canada are not elected, but are appointed for life (subject to removal for cause and certain age restrictions) by the government of the day. In addition to the court system, there are specialized independent tribunals that resolve disputes, including employment and municipal matters. In almost all cases, appeals are allowed from final decisions of courts or tribunals. For information regarding class action proceedings in Canada, see the commentary under the heading "Are Class Actions a Risk for Business in Canada?" on page 13.1.

Outside the court system, disputes can be adjudicated through arbitration if the parties have agreed to do so. In arbitrations, the decision-maker is not a judge, but rather an independent person agreed on by the parties or appointed by a judge. Each province has legislation that governs the arbitration process, if selected by the parties in their contract or otherwise.

British Columbia, Saskatchewan, Ontario, Newfoundland & Labrador and Nunavut have passed legislation adopting the United Nations Commission on International Trade Law's Model Act for use by parties to a commercial dispute where the parties in the arbitration have their places of business in states/provinces. Each of these provincial Acts will come into effect once the UN Convention on the Settlement of Investment Disputes ("ICSID") has been ratified by Canada. Bill C-9 received Royal Assent on March 13, 2008, but the government has not, as yet, indicated when it intends to ratify ICSID. Becoming a ratified party to ICSID will hopefully encourage reciprocal international investment, by both providing additional protections and arbitration options to Canadian investors abroad and to foreign investments in Canada.

Once ICSID is in effect, where a Canadian investor in a foreign state which itself has ratified ICSID has a dispute, the governing contract can provide that disputes will be settled by way of arbitration under ICSID. In such cases, or in disputes with against foreign governments under free trade agreements or bilateral trade agreements to which Canada is a party, there is no right of appeal of the ICSID award to the courts. The ICSID arbitration decision is final, apart from appeal to the ICSID Secretary-General in five narrowly described circumstances (such as corruption of a member of the Tribunal, serious departure from procedure or failure to provide reasons). Party states are bound to recognize the award and enforce it as if it were a final judgement of a national court of the state. Three South American countries (Venezuela, Bolivia and Ecuador) have recently withdrawn from ICSID certification as a result of concerns regarding possible disputes which may arise out of the nationalization by each of certain natural resource properties and foreign-controlled businesses.

In a March 2008 survey, KPMG ranked Canada second only to Mexico as the most cost-efficient place to do business in the countries surveyed. In a second survey of 82 countries conducted by the Economist Intelligence Unit, it ranked Canada fourth in the world in economic prospects over the next five years. Factors considered included the political and economic environment in the countries, taxes, labour, market potential and trade and investment policies.

Finally, parties are, of course, free to select the ICC-International Court of Arbitration in London as the court with jurisdiction to determine disputes; this choice will generally be given effect by courts in Canada.

What Do Canada's Current Economic Indicators Disclose?

Since 1997 the Canadian federal government has consistently maintained significant budget surpluses. Canadian interest rates had moved gently down over several years until 2005. Rates have moved up since then with recent changes reflecting a response to the worldwide capital market disruptions arising out of the US sub-prime mortgage meltdown. The commercial bank prime rate in late January 2009 was 3.0%, down by 2.5% since September, 2008. The Bank of Canada overnight lending rates charged to commercial banks in late January 1%, down dramatically since September 2008 as a result of action taken by the Bank of Canada to stabilize Canadian capital markets and counter the adverse effect of the American subprime mortgage crisis and the asset backed securities market collapse in Canada. It is anticipated that the rate will be reduced to 0.5% in March, 2009 as the federal government attempts to encourage commercial banks to increase their lending, by lowering their cost of funds.

Inflation in Canada for the 12 months ended December 2009 was 2.4%.

Canada's unemployment rate at the end of January 2009 was 7.2%, up by nearly 1.2% in the last four months. One hundred and twenty-nine thousand jobs were lost in Canada in the month of January, 2009. The Ontario manufacturing sector has been hardest hit as a result of the continued uncertainty in the US consumer markets.

Over 80% of Canadian exports are made to the US The slowdown in the US economy during the last two years has led to a decline in the rate of growth of the Canadian economy. The trend had been reversed during early 2008 with the surge in commodity prices, including oil, gas, copper, coal and gold. The Canadian economy grew modestly in 2008 and has been flat (no growth over the four months ended October, 2008). It is anticipated that Canada's growth in its gross domestic product in 2008 will be between 0.6% and 1.2%. The global recession and sharp decline in commodity prices led, for the month of December, 2008, to Canada had its first trade deficit in 30 years $348 million compared to a surplus of $1.2 billion in the month of November, 2008, driven in large part by falling US demand.

Most Canadian manufacturers anticipate continuing declines in shipments. Canadian governments have recently been criticized for their focus on redistribution of wealth among the provinces instead of looking for ways to (i) reduce interprovincial barriers to trade, (ii) encourage excellence, innovation and wealth creation and (iii) fund major cities (usually cited as key economic engines for any economy). The result has been a decline in Canada's living standard over the last 15 years.

Finally, significant uncertainty exists as to the effect of the loss of liquidity in several financial capital markets arising out of America's sub-prime mortgage lending problems and the resulting increase in the cost of capital. In Canada, the demand for short-term asset-based commercial paper collapsed when buyers lost confidence as a result of what they perceived as inadequate financial backing for these securities and buyers then failed to take up the usual volume of commercial paper as it matured in mid-August, 2007. The Bank of Canada has had to put significant funds in the overnight market to maintain interest rates at levels prior to that time and to curb the threat of inflation. Under an arrangement referred to as the Montréal Accord, the holders of the defaulted commercial paper agreed to continue to hold the paper and not exercise their remedies. On March 17, 2008, an application was made to the courts in Ontario pursuant to the Companies' Creditors Arrangement Act (Canada), and an order was issued which stays all legal proceedings regarding the trusts that issued the asset back commercial paper. The work out plan had to have been approved by 50% of the issuers' creditors plus one. The plan was approved in late April 2008. On January 12, 2009 the Court issued a final order, permitting the restructuring to close. The foregoing, together with the capital market disruptions, will likely result in a significant increase in the cost of capital for Canadian business enterprises and few, if any, non-bank suppliers of short-term commercial paper in Canada.

The anticipated continued rise of consumer demand in India and China may put pressure on production costs and prices for Canadian business.

What Is The GST And How Does It Affect Business?

The goods and services tax ("GST") is a broad-based value-added tax of 5% imposed on goods services in Canada. Generally speaking, businesses can recover the GST they pay to the federal government by claiming input tax credits. As a result, the tax does not represent an operating cost to business. Rather, the cost of GST is paid by the end user of the product or service.

The GST does not apply to exported goods. Therefore it does not impose an additional cost on Canadian exporters. Although the tax is applied, collected, remitted and claimed back at each transaction level, a business is only required to remit to the tax authorities the amount of the excess of the tax it has collected (or ought to have collected) over the tax it has paid on its own purchases. The principal cost of the GST for business arises from the resulting reporting and compliance requirements.

What Can Business Expect From The Current Governments In Ontario, In Toronto And In Canada?

In October 2007, the Ontario Liberal Party was re-elected for a further four years in a provincial election. Since taking office, because of a current budgetary deficit of $6 billion, the Ontario Liberals eliminated the then existing limit on consumer electricity prices, and cancelled reductions in corporate and personal provincial income taxes. In addition, the government increased the general minimum wage to $8.75 an hour as at the end of March 2008 with an increase to $9.50 scheduled for March 31, 2009 and a target of $10.25 by March 31, 2010.

In November 2003, the City of Toronto elected David Miller as mayor. Mr. Miller and the Federation of Canadian Cities are pressing both the provincial and federal governments for additional funding for Canada's cities. Over the last 10 years, many of the services previously provided by the provinces have been downloaded onto municipalities with no corresponding increase in federal or provincial funding to the cities. Mr. Miller was re-elected in 2006.

In a general election held in Canada in October 2008, a Conservative minority was re-elected. The federal Conservative government, headed by Prime Minister Stephen Harper, has improved relations between Canada and the United States, enhanced government transparency, strengthened law enforcement and reduced the GST from 7% to 5%.

In January, 2009, the minority government introduced a budget which includes an expansion of the federal government's existing insured mortgage program by $50 billion, the purchase by the government from federally regulated financial institutions of $12 billion in asset backed commercial paper intended principally to support the automobile leasing market, $13 billion in new funds available through the Business Development Bank of Canada and the Export Development Bank and an increase in individual loan limits under the Canadian Small Business Financing Program from $250,000 to $350,000.

New Protocol To The Canada-US Income Tax Convention

The Fifth Protocol to the Canada-US Tax Convention (the "Tax Convention") was signed on September 21, 2007 which Canada ratified on December 14, 2007. The Technical Explanation was released July 8, 2008. The Fifth Protocol was approved by the US Senate on September 23, 2008 and came into force in Canada and the United States on December 15, 2008.

The following is a summary of certain of the important changes introduced by the Fifth Protocol.

Elimination Of Withholding Tax On Interest Payments Between Canada And The US

Thin-Capitalization Rules

It should be noted that the domestic thin-capitalization rules in the federal Income Tax Act (the "Tax Act") which can restrict the deductibility of interest in respect of "outstanding debts to specified non-residents" continue to apply to the Canadian borrower regardless of the withholding tax treatment of the interest under the Fifth Protocol.

Extension Of Treaty Benefits To Limited Liability Companies

The current Convention does not provide any rules regarding the treatment of "hybrid" entities, such as LLCs, that are treated as corporations under the laws of one country but are treated as fiscally transparent entities in the other country. Canada Revenue Agency ("CRA") had taken the position that a fiscally transparent LLC would not be entitled to benefits under the current Convention.

The Fifth Protocol provides that income earned through an LLC by a person who is a resident of the US for purposes of the Tax Convention will be treated by Canada as having been earned directly by that person provided that the treatment of the amount under the tax laws of the US is the same as its treatment would be if that had been derived directly by that person. In this case, such persons will, subject to the LOB provision, be entitled to benefits under the Tax Convention such as reduced rates of withholding tax.

However, Canadian law does not disregard the existence of the LLC itself. One implication of the foregoing is that the LLC will have to file a Canadian tax return in respect of income and benefits under the Tax Convention. Another implication is that if the income at issue is business profits, it will have to be determined if such income was earned through a permanent establishment in Canada based on the presence, and activities, of the LLC itself in Canada, not those of the shareholders. Moreover, the LLC will be subject to tax on any profits attributable to a permanent establishment in Canada.

Hybrid Entities

While treaty benefits are extended to certain LLCs under the Fifth Protocol, there will be a denial of treaty benefits in respect of certain hybrid entities. The new provisions dealing with hybrid entities are quite broad and will affect a wide range of US investment structures. These changes are effective on January 1, 2010. The two-year suspension in the application of the new rules gives taxpayers a chance to review and restructure their arrangements if they wish to do so.

Treaty benefits will be denied in respect of dividends, royalties and interest paid by a Canadian unlimited liability company, a ULC, (disregarded for US tax purposes) to its US parent.

An example of a financing structure that will be affected by the new provision is where US corporations constitute themselves as a Canadian partnership to finance their Canadian operations and check the box in the US so that the partnership is treated as a corporation for US tax purposes. The reduced withholding rate under the treaty will no longer apply to interest paid by the Canadian corporation to the partnership.

Other Provisions Of The Fifth Protocol

Additional important changes in the Fifth Protocol:

• Services performed by an enterprise of a treaty country (e.g., the United States) in the other treaty country (e.g., Canada) may give rise (under Canadian law) to a permanent establishment by the enterprise in the other country (Canada). If the rule applies, the services will be taxed on a net basis on profits attributable to the activities carried on in performing those services.
• A revised LOB provision that only grants treaty benefits to a resident of Canada or a resident of the US if certain tests are met (the LOB provision prior to the Fifth Protocol only applied in respect of US treaty benefits).
• Disputes regarding certain key double tax issues, such as transfer pricing, may now be settled through binding arbitration.
• Double taxation on emigrants' gains will be eliminated by providing for a step-up in the tax cost of property in certain cases.
• There will be mutual tax recognition of pension contributions.
• The tax treatment regarding stock options granted to employees while working in one country who exercise or dispose of the options while working in the other country have been clarified.

Is This A Good Time To Start A Business In Canada?

This remains a good time to start a business in Canada. Canada has a well-educated, highly skilled work force, and is particularly attractive for white-collar, high-technology businesses. Canada also has reasonably priced office accommodation, industrial premises and undeveloped land available. Canada has an abundance of natural resources and extensive telecommunication and transportation infrastructure including highways, railways, sea ports, the St. Lawrence Seaway and the Great Lakes system of canals. Canadian cities are known as being safe and liveable and Canada is fortunate to have an abundant supply of clean, accessible water. Finally, Canadian business practices and legislative developments generally follow those in the US, giving US business a unique advantage in anticipating business and legislative trends in the Canadian market.

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