This July, Corporations Canada will begin issuing administrative dissolutions to not-for-profit ("NFP") corporations governed by the Canada Not-for-profit Corporations Act ("CNCA"), that have not filed their annual returns for three (3) or more consecutive years.
Corporations Canada requires every active federal corporation – including all CNCA corporations – to file an annual return each year within 60 days of the corporation's anniversary date. A corporation's anniversary date is the day and month of its incorporation. A director, officer, or authorized individual must know the date of the last annual meeting and whether the corporation is soliciting or non-soliciting in order to file the annual return.
The CNCA and Corporations Canada
The CNCA came into force on October 17, 2011. When the CNCA came into force, non-share capital corporations previously governed by the Canada Corporations Act ("CCA") were given a three-year period to transition to the CNCA. Many dormant corporations were administratively dissolved when they did not continue from the CCA into the CNCA.
Section 222 of the CNCA provides that the director (the "Director") – appointed by the Minister of Innovation, Science and Industry of Canada (the "Minister") – shall carry out the Minister's duties and powers under the CNCA. This means that the Director may dissolve a corporation if it is in default for three (3) consecutive years in sending a fee, notice, or document required by the CNCA to the Director. The Director may issue a certificate of dissolution 120 days after notice is given (described more fully below) to each director of the corporation and a publication of the notice is made generally available to the public.
At this juncture Corporations Canada will continue to update its public registry to identify inactive CNCA corporations that are delinquent in their annual return filings or in fact dormant. Corporations governed by the CNCA that are in default of filing their annual returns for three (3) or more consecutive years will receive a Notice of Intent to Dissolve ("Notice") from the Director and will have 120 days from the date on the Notice to file the required annual returns. Corporations Canada will issue a Certificate of Dissolution to non-share capital CNCA corporations that do not respond by the date stated in the Notice.
What happens to a dissolved corporation which is registered as a charity?
The dissolution of a non-share capital CNCA corporation, which has charitable status under the Income Tax Act (Canada) can have serious legal and tax implications. According to the CNCA, a corporation ceases to exist on the date shown in the Certificate of Dissolution. A dissolved corporation can no longer conduct any activities, except to the extent needed for liquidation. This would significantly impact an active charity that simply has been delinquent in its more "administrative tasks" such as keeping up with its CNCA annual returns.
In particular, CNCA corporations that are dissolved due to not filing annual returns which are also registered charities will likely have their charitable registration revoked by the Canada Revenue Agency ("CRA") since this regulator will not allow dissolved corporations to be registered charities. Losing status as a registered charity for such a dissolved corporation will mean losing the benefits of this status as well. For instance, upon revocation a charity can not receive gifts or issue official donation receipts, will be publicly listed for revocation along with the reason, and must transfer all of its assets to a qualified donee or qualified donees within a prescribed timeframe or pay the revocation tax which is equal to 100% of the value of the charity's remaining assets, after debts are paid.
A charity that is administratively dissolved but wishes to continue operations can revive the CNCA corporation based on the procedures set out in section 219 of the CNCA. An individual can be qualified to revive a dissolved corporation if they have a valid reason to revive the corporation and were a member, director, officer, employee, or creditor of the corporation at the time of its dissolution or revival, or have a contractual relationship with the corporation. The application for revival requires the payment of a filing fee, a completed and signed copy of Form 4015, and a valid NUANS name search report of the corporate name.
Tips for CNCA corporations to avoid becoming unintentionally dissolved
CNCA corporations must file annual returns with Corporations Canada annually and make active efforts to file any outstanding returns as soon as possible. All CNCA corporations have had this requirement since the CNCA was proclaimed into force in 2011, but Corporations Canada is choosing to take a more active position in dissolving CNCA corporations which do not meet this requirement now.
Corporations Canada advises the following to ensure the security of a CNCA corporation's incorporation status:
- Search Corporations Canada's online database to confirm whether the non-share capital corporation's annual return is due and file the return online for only $12.
- Keep Corporations Canada informed of changes to the corporation's registered office address.
- Keep Corporations Canada informed of any changes to the corporation's board of directors.
- Amend the corporation's articles of incorporation with any changes relating to the corporation's basic corporate structure.
- Regularly check Corporations Canada's online database to confirm that the public corporate profile is up-to-date.
For charities which are also CNCA corporations many of the changes noted in this list will also require the charity to make an additional submission to CRA to ensure that this additional federal regulator is kept appraised of changes to the corporation.
Conclusion
CNCA corporations should ensure that their annual returns are up-to-date now and on an ongoing and annual basis to avoid administrative dissolution and the legal and tax implications that come with it. Miller Thomson LLP's Social Impact Group would be pleased to assist with your CNCA corporation with its annual returns and advise you regarding any other corporate, charity law, or other compliance questions to avoid unintended consequences of this new program.
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.
