Incorporations, Business Start ups and Extra-Provincial Registrations
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Trusted Incorporations Lawyer, Small Business Lawyer, Company Lawyer and Extra-Provincial Registration LawyerFrom small businesses, growing businesses or to businesses transitioning to a new opportunity to assist you in incorporating we know there are many reasons to incorporate a company and there is a lot involved in incorporating whether you are starting up or transferring your ongoing business to a corporation as how the corporation is set up and structured will impact how it carries on business from incorporation. For growing businesses expanding in to Alberta we provide Extra-Provincial Registration Filing and Service Agent services.
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FAQs about incorporating and extra-provincial registration of a company in Alberta and information about structuring a non-distributing corporation, officers and directors of corporations, corporate names, corporate governance requirements, and registered offices.
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More information on other options for start ups or carrying on or expanding your current business including proprietorships, partnerships, limited liability partnerships, joint ventures, distribution agreements, licensing agreements, sales agency agreement services.
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More information on Unanimous Shareholders Agreements and how they can form part of a corporate structure, structure how the corporation carries on business as well as the dealings between shareholders, directors and officers.
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More information on corporate planning for start ups or expanding or your current business to address tax matters, risk matters, new markets, new opportunities, attracting or keeping key personnel, strategic ownership, succession planning or investment purposes.
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We are Located at Suite 220-5540 Windermere Boulevard NW, Edmonton, Alberta T6W2Z8
which is conveniently located in Windermere South West Edmonton, with easy access from Anthony Henday Drive, Whitemud Drive, Terwillegar Drive with free on site parking.
We are Located at Suite 220-5540 Windermere Boulevard NW, Edmonton, Alberta T6W2Z8
which is conveniently located in Windermere South West Edmonton, with easy access from Anthony Henday Drive, Whitemud Drive, Terwillegar Drive with free on site parking.
We strive to be open and straightforward about our fees and fee estimates, and provide several options to get our fees information so that you can choose the most convenient option for you.
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Frequently Asked Questions - Alberta Incorporations
Have questions? Contact us or set out below are answers to the following Frequently Asked Questions:
- What is the cost for incorporating a company in Alberta?
- What I should know about incorporating a company?
- What name can I choose for my company?
- What are some of the duties and responsibilities of Directors and Officers of a company?
- What are annual returns and what are some of the ongoing annual corporate governance requirements of a Corporation?;
- What is a registered office and why does a company need one?
- What is an Agent for Service and why does a company need one?
- What is an Extra-Provincial Registration and why is required?
What is the cost for incorporating or extra-provincially registering a company in Alberta?
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For our online account estimate for incorporating an Alberta company including an online account estimate, click on the icon. |
What I should know about incorporating a company?
There are an unlimited number of ways to structure your business, and what works best for you will depend upon your business.
For most private held corporations in Alberta, in determining how your business is structured you will need to consider some of the following:
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
For most private held corporations in Alberta, in determining how your business is structured you will need to consider some of the following:
- Corporate Name - Set out below in "What Name Can I Choose for My Corporation" are some of the considerations involved in choosing a corporate name, or you can contact us and we can assist you in determining a corporate name.
- Directors - You will need to consider whom the Directors of the Corporation should be. Depending upon the articles, bylaws and any shareholder agreements, a Corporation there is a maximum number of directors and a minimum of at least one director. The Directors [and their mailing address] are registered as Directors of the Corporation at Alberta Corporate Registries. There are requirements on who can be a director [a minimum number of Canadian Residents is often required] and limitations on who can and cannot be a director [a bankrupt, persons under 18 or mentally incompetent etc. cannot be directors]. Often one of the motivations to incorporate is to limit liability, the Corporation is a separate legal entity with its own liability, but Directors can as well face a significant amount of personal liability under the Business Corporations Act [Alberta] and elsewhere depending other the laws that may be applicable to the Corporation's business. As it is important that those that are considering being a director of a company are aware of their duties, obligations and liabilities [see below "WHAT ARE THE DUTIES OBLIGATIONS AND LIABILITIES OF DIRECTORS AND OFFICERS UNDER THE BUSINESS CORPORATIONS ACT? for more details].
- Shareholders - You will need to consider whom the shareholders of the Corporation are and what shares they are to get. The articles of incorporation for the Corporation will set out the rights, obligations and restrictions for all shares. Shareholders Agreements will as well impact the rights, obligations and restriction on shares. So, whether a share has voting rights [or not] is a common share [or a preferred share] will be set out in the articles. The Voting Shareholders [and their mailing address] of a Corporation are filed at Alberta Corporate Registries. Further, after incorporation there are yearly requirements that must be met, including Annual General Meetings of Shareholders that impact both voting and non-voting shareholders. Set out below is "After I incorporate what are the yearly requirements under the Business Corporations Act". There is a lot to consider in structuring ownership of the shares, and depending upon your business structure in addition to the articles of incorporation a unanimous shareholders agreement can be used to deal with the rights and obligations of shareholders. These are just the legal considerations there are other considerations [tax, accounting, financing and banking, regulatory and industry requirements etc.] that you will as well have to consider. Contact us for assistance in determining what share structure and shareholdings works best for you.
- Officers - You will need to consider whom the Officers of the Corporation are and what positions they may have. There can be a large variety of Officers [President, Vice-President, Secretary, Treasurer etc.] and their roles can as well be varied. Often the particular roles are set out in the bylaws of the Corporation and elsewhere. These different roles can be very important in the corporate governance as each office has different rights and responsibilities. Similarly to Directors, Officers can as well face significant amount of personal liability under the Business Corporations Act [Alberta] and elsewhere depending other the laws that may be applicable to the Corporation's business. As it is important that those that are considering being a officer of a company are aware of their duties, obligations and liabilities [see below "WHAT ARE THE DUTIES OBLIGATIONS AND LIABILITIES OF DIRECTORS AND OFFICERS UNDER THE BUSINESS CORPORATIONS ACT? for more details].
- Registered Office and Records Address - You will need to consider where the registered office for the Corporation is as well as the Records Address. A Registered Office [mailing address and place of business] and/or Records Address must be filed at Alberta Corporate Registries. The Registered Office is generally where the Corporation's minute book and seal are located, where the Corporation can be formally served documents via mail or attendance to the address, and it is where the Annual Return from Alberta Corporations will be sent to [see "After I incorporate what are the yearly requirements under the Business Corporations Act" for more details]. It is very important to note that the registered office [as well as the address for service via mail] is the address at which the corporation can be served with legal documents, and if the documents are properly served then the corporation's receipt of the legal documents are deemed so it is of utmost importance that the registered office [and address for service via mail] be located at a reliable mailing and business address. The Record Address is where records respecting the business are located, and often is the head office. There are of course additional considerations in determining suitable addresses for a Corporation and you can contact us for assistance in determining what is the right address for you.
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
What name can I choose for your company?
In determining whether a corporate name, trade name or trade-mark is available, the following must be considered:
There are also business considerations to a corporate name such as the availability of domain names, phone numbers, social media accounts [facebook, twitter, google+, instagram etc.] which may be equally or even more important to but fall outside the scope of our standard incorporation processes.
This may or may not be an issue for you depending upon your current circumstances and future business plans are.
- Whether the name is considered to be "available" under the applicable Business Corporations Act and regulations:
- Whether the name or mark is considered to be "available" under the Trade-Marks Act [Canada]; and
- Whether the name or mark has another person's reputation or goodwill connected to the name or mark such that its use would potentially cause damage to that person's rights and constitute the tort of passing off.
There are also business considerations to a corporate name such as the availability of domain names, phone numbers, social media accounts [facebook, twitter, google+, instagram etc.] which may be equally or even more important to but fall outside the scope of our standard incorporation processes.
This may or may not be an issue for you depending upon your current circumstances and future business plans are.
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There is a brief overview of some of the considerations, and our blog contains a post which provides even more details and information that may be of assistance to you.
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Click for Blog Post
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1. Whether the name is considered to be "available" under the applicable Business Corporations Act and regulations.
While there is different legislation in which a company can be incorporation [each Province has legislation as well as Parliament], the separate applicable legislation and regulations that govern the use of similar or identical corporate names.
A company incorporated under Provincial Government legislation, in Alberta it is the Business Corporations Act, R.S.A. 2000, c. B-9 [the "ABCA"], will be governed by that provinces legislation, and equally so, company incorporated under the Parliament's legislation, the Canadian Business Corporations Act, R.S.C. 1985, c. C-44 [the "CBCA"], will be governed by the Federal Government's legislation.
The separate legislation have regulations governing the use of similar or identical corporate names as well there are separate Registrar of Corporations responsible for governing incorporations and tracking existing and dissolved corporations.
Generally speaking in order to incorporate a company in Alberta, or under Federal legislation at Industry Canada, a NUANS name search is required to determine if a corporate name is available, and if the name is available, then it can be reserved for a limited time period.
If the company is not incorporated within the time period provided in the search and reservation, then a new search to determine if the corporate name is available will be required.
The NUANS name search will provide a preliminary indication that corporate name is available.
However, the NUANS name search is NOT a guarantee that corporate name is indeed available.
2. Whether the name or mark is considered to be "available" under the Trade-Marks Act [Canada].
Only the federal government has jurisdiction to govern trade-marks under the Trade-marks Act [Canada], which provides that some trade-marks, a distinctive symbol or wording used to describe particular goods or services of a company as opposed to the name of a company, are intellectual property and afforded protection under the Act.
A trade-mark is a word, phrase, or symbol used in association with goods or services. Use of a mark in association with goods or services in the marketplace gives the owner certain rights to use the mark exclusively in association with those goods or services, including a right to claim damages against anyone who infringes the mark. Registration of trade-marks is not required but is provided for under the Trade-marks Act.
A trade-name for the purposes of the Trade-marks Act is simply a name used by a business. It may be a corporate name or another name used by the business. A trade-name is not necessarily a trade-mark unless it is used also to identify the goods or services of the business. It may be simple enough to distinguish a trade-mark from a trade-name where a business produces goods and the goods are sold with a mark attached to them which is different from the corporate name
A corporate name or other trade-name is not necessarily a trade-mark, and the use of words claimed to be a trade-mark in a corporate name will be only one factor the court will consider in deciding whether a trade-mark is valid. The words must be used as a trade-mark to identify goods or services to be valid.
Confusion for the purposes of trade-mark infringement is not necessarily the same as confusion for corporate statutes. Use of words constituting a trade-mark in a name, in some circumstances, may not be an infringing use of the mark. Conversely, it is not certain whether a finding that one corporate name is confusingly similar to another under corporate law means that a trade-mark contained in the second name is also being infringed.
3. Whether the name or mark has another person's reputation or goodwill connected to the name or mark such that its use would potentially cause damage to that person's rights and constitute the tort of passing off.
There is more to "availability" of a corporate name, trade name or trade mark than a search showing that they are not registered at Trade-marks or the various corporate registries.
A person who has carried on business and created goodwill, a good reputation, under a particular trade name or trade mark, or goodwill, under that , as the Courts will in law recognize that person's right to that particular trade name through its use and creation of goodwill.
Even if a person does not incorporate, register a trade name or register a trade-mark rights to the trade name will arise by operation of the law, and if a subsequent person or corporation were to use the trade name they may be liable for the tort of "passing off' that damaging or improperly using the goodwill of the person who originally used the trade name.
While registration of a corporate name, trade name or trade mark will set a date and give the public notice that the name is in use, it in itself is not a guarantee of a right to use a name.
It is also important to note that as passing off arises from the common law, law and precedent arising from the various decisions of the Courts, the Court will afford protection to a party's goodwill where that party conducts business, beyond the boundaries of a province where it is incorporated or is extra-provincially registered, and may even include the potential markets that party may expand into.
Whether the use of a corporate name or trade name constitutes the tort of "passing off" is dependent upon the particular facts and circumstances existing before and at the time the name is used as well as existing at the time such a claim is made. It is noted that the facts and circumstances provided are quire limited, and are contemplated to change in time.
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
While there is different legislation in which a company can be incorporation [each Province has legislation as well as Parliament], the separate applicable legislation and regulations that govern the use of similar or identical corporate names.
A company incorporated under Provincial Government legislation, in Alberta it is the Business Corporations Act, R.S.A. 2000, c. B-9 [the "ABCA"], will be governed by that provinces legislation, and equally so, company incorporated under the Parliament's legislation, the Canadian Business Corporations Act, R.S.C. 1985, c. C-44 [the "CBCA"], will be governed by the Federal Government's legislation.
The separate legislation have regulations governing the use of similar or identical corporate names as well there are separate Registrar of Corporations responsible for governing incorporations and tracking existing and dissolved corporations.
Generally speaking in order to incorporate a company in Alberta, or under Federal legislation at Industry Canada, a NUANS name search is required to determine if a corporate name is available, and if the name is available, then it can be reserved for a limited time period.
If the company is not incorporated within the time period provided in the search and reservation, then a new search to determine if the corporate name is available will be required.
The NUANS name search will provide a preliminary indication that corporate name is available.
However, the NUANS name search is NOT a guarantee that corporate name is indeed available.
2. Whether the name or mark is considered to be "available" under the Trade-Marks Act [Canada].
Only the federal government has jurisdiction to govern trade-marks under the Trade-marks Act [Canada], which provides that some trade-marks, a distinctive symbol or wording used to describe particular goods or services of a company as opposed to the name of a company, are intellectual property and afforded protection under the Act.
A trade-mark is a word, phrase, or symbol used in association with goods or services. Use of a mark in association with goods or services in the marketplace gives the owner certain rights to use the mark exclusively in association with those goods or services, including a right to claim damages against anyone who infringes the mark. Registration of trade-marks is not required but is provided for under the Trade-marks Act.
A trade-name for the purposes of the Trade-marks Act is simply a name used by a business. It may be a corporate name or another name used by the business. A trade-name is not necessarily a trade-mark unless it is used also to identify the goods or services of the business. It may be simple enough to distinguish a trade-mark from a trade-name where a business produces goods and the goods are sold with a mark attached to them which is different from the corporate name
A corporate name or other trade-name is not necessarily a trade-mark, and the use of words claimed to be a trade-mark in a corporate name will be only one factor the court will consider in deciding whether a trade-mark is valid. The words must be used as a trade-mark to identify goods or services to be valid.
Confusion for the purposes of trade-mark infringement is not necessarily the same as confusion for corporate statutes. Use of words constituting a trade-mark in a name, in some circumstances, may not be an infringing use of the mark. Conversely, it is not certain whether a finding that one corporate name is confusingly similar to another under corporate law means that a trade-mark contained in the second name is also being infringed.
3. Whether the name or mark has another person's reputation or goodwill connected to the name or mark such that its use would potentially cause damage to that person's rights and constitute the tort of passing off.
There is more to "availability" of a corporate name, trade name or trade mark than a search showing that they are not registered at Trade-marks or the various corporate registries.
A person who has carried on business and created goodwill, a good reputation, under a particular trade name or trade mark, or goodwill, under that , as the Courts will in law recognize that person's right to that particular trade name through its use and creation of goodwill.
Even if a person does not incorporate, register a trade name or register a trade-mark rights to the trade name will arise by operation of the law, and if a subsequent person or corporation were to use the trade name they may be liable for the tort of "passing off' that damaging or improperly using the goodwill of the person who originally used the trade name.
While registration of a corporate name, trade name or trade mark will set a date and give the public notice that the name is in use, it in itself is not a guarantee of a right to use a name.
It is also important to note that as passing off arises from the common law, law and precedent arising from the various decisions of the Courts, the Court will afford protection to a party's goodwill where that party conducts business, beyond the boundaries of a province where it is incorporated or is extra-provincially registered, and may even include the potential markets that party may expand into.
Whether the use of a corporate name or trade name constitutes the tort of "passing off" is dependent upon the particular facts and circumstances existing before and at the time the name is used as well as existing at the time such a claim is made. It is noted that the facts and circumstances provided are quire limited, and are contemplated to change in time.
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
What are some of the duties and responsibilities of a Director and Officer of a Company?
While limiting liability is one of the reasons for incorporating, as it is a separate legal entity, directors and officers can in some circumstances face substantial personal liability if they fail to meet their duties and obligations.
It is important when considering your corporate structure that those that are considering being an officer or director of a company are aware of their duties, obligations and liabilities before they agree to doing so.
The Business Corporations Act (Alberta) (the “Act”), set out the duties and obligations of the directors and officers of the corporation, as well as the liability which they may incur by reason of their position in the corporation.
It is important to note that this is not an exhaustive list of the personal liability directors and officers can face under the Business Corporations Act, and directors and officers can face personal liability beyond the Business Corporations Act depending other the laws that may be applicable to the Corporation's business.
The Act provides and confirms that every director and officer of a corporation owes a fiduciary duty to that corporation (s 122). This means that in exercising their powers and discharging their duties, directors and officers must act honestly and in good faith with a view to the best interests of the corporation. The standard by which this duty is measured is whether the officer or director exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
In addition to this general duty, directors and officers are bound by the Act, the regulations, the articles, the bylaws and any unanimous shareholder agreements of the corporation. Directors or officers of the corporation who breach their duties or fail to act in accordance with the Act, any regulations under the Act, the articles, bylaws or unanimous shareholder agreements cannot escape liability through contract, provisions in the articles, bylaws, or through resolutions of the corporation. However, the Act does provide that the corporation may indemnify directors or officers against all costs, charges and expenses reasonably incurred by them in respect of any action or proceeding to which they are made a party by reason of their being a director or officer. This indemnification is only available if they acted honestly and in good faith with a view to the best interests of the corporation, or if they reasonably believed their conduct was lawful. The corporation may also purchase insurance for any liability incurred by directors or officers provided again that they acted honestly and in good faith with a view to the best interests of the corporation. A director is jointly and severally liable to the corporation if he or she voted for or consented to a resolution authorizing:
(a) issuance of shares for consideration other than money when the consideration received is less than the fair equivalent of the money which the corporation would have received if the shares had been issued for money;
(b) payment of dividends where
(i) there are reasonable grounds for believing that the corporation is, or would be after payment, unable to pay its liabilities as they become due, or
(ii) the realizable value of the corporation’s assets would after the payment be less than the aggregate of its liabilities and stated capital of all classes, or in other words, “insolvent”;
(c) purchase, redemption or acquisition by the corporation of its own shares if there are reasonable grounds for believing that the corporation is “insolvent” or would be after the transaction;
(d) provision of financial assistance by means of a loan, guarantee or otherwise to any director, shareholder or associate thereof, or to any person in connection with the purchase of shares of the corporation without disclosure of the transaction to the corporation’s shareholders;
(e) payment of an unreasonable commission for the sale of shares;
(f) payment of an unauthorized indemnity to a director or officer.
In addition, subject to certain limitations in the Act, a director is jointly and severally liable to employees of the corporation for all debts for services performed but not exceeding the equivalent of 6 months’ wages.
“Jointly and severally liable” means that each director is liable to pay the full amount of any damages resulting from the acts of the directors. Correspondingly, each director is equally liable, so that where one director pays all of the damages, the other directors would be liable to compensate him or her for their respective shares. Directors who are present at a directors’ meeting are considered to have consented to resolutions passed or actions taken at that meeting unless they expressly abstain or dissent, request that their abstention be entered into the minutes, or can otherwise prove that they did not consent.
According to s 123(3) of the Act, directors will not be liable if they relied in good faith on:
(a) financial statements of the corporation represented by an officer of the corporation or its auditor to fairly reflect the financial condition of the corporation, or
(b) any opinion or report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by them.
Directors or officers of the corporation are required to disclose to the corporation in writing the nature and extent of their involvement whenever they are a party, directly or indirectly, to a material contract with the corporation. Furthermore, there is a prohibition against the involved director voting on any resolutions considering such a contract. If the director fails to disclose his or her material interest at the meeting in which the proposed contract is first considered, any shareholder of the corporation may apply to the court to have the contract set aside. A general notice to the directors from a director or officer is sufficient disclosure of an interest in relation to any contract between the corporation and a person in which the director or officer has a material interest. The notice must declare that he or she is a director or officer, that he or she has a material interest in the contract or other contracting party, and must state the nature and extent of the interest. General notice should generally be given within the 12-month period immediately preceding the meeting at which the proposed contract was first considered.
The Income Tax Act provides that the directors of a corporation may be jointly and severally liable together with the corporation for any tax required to be withheld, deducted or remitted, including any interest and penalties related to the failure to withhold, deduct or remit.
Similar provisions apply to GST, Canada Pension Plan and Employment Insurance amounts.
A director may be liable for failure to comply with Canadian Anti-Spam Legislation respecting electronic communications.
Corporations incorporated under the Canada Business Corporations Act, and anticipated to be a requirement of Corporations incorporated under the Alberta Business Corporations Act, are required to keep a register of "individuals with significant control" over the Corporation.
The Corporation must take reasonable steps to inquire and for any individual that has significant control the Corporation must keep track of the following recording it in a corporate register [a "Control Register"]:
The Corporation must update the Control Register regularly.
Directors, officers and Shareholders of the Corporation can face fines and jail time for failing to comply with the applicable requirements.
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations and liabilities.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements and liabilities.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
It is important when considering your corporate structure that those that are considering being an officer or director of a company are aware of their duties, obligations and liabilities before they agree to doing so.
The Business Corporations Act (Alberta) (the “Act”), set out the duties and obligations of the directors and officers of the corporation, as well as the liability which they may incur by reason of their position in the corporation.
It is important to note that this is not an exhaustive list of the personal liability directors and officers can face under the Business Corporations Act, and directors and officers can face personal liability beyond the Business Corporations Act depending other the laws that may be applicable to the Corporation's business.
The Act provides and confirms that every director and officer of a corporation owes a fiduciary duty to that corporation (s 122). This means that in exercising their powers and discharging their duties, directors and officers must act honestly and in good faith with a view to the best interests of the corporation. The standard by which this duty is measured is whether the officer or director exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
In addition to this general duty, directors and officers are bound by the Act, the regulations, the articles, the bylaws and any unanimous shareholder agreements of the corporation. Directors or officers of the corporation who breach their duties or fail to act in accordance with the Act, any regulations under the Act, the articles, bylaws or unanimous shareholder agreements cannot escape liability through contract, provisions in the articles, bylaws, or through resolutions of the corporation. However, the Act does provide that the corporation may indemnify directors or officers against all costs, charges and expenses reasonably incurred by them in respect of any action or proceeding to which they are made a party by reason of their being a director or officer. This indemnification is only available if they acted honestly and in good faith with a view to the best interests of the corporation, or if they reasonably believed their conduct was lawful. The corporation may also purchase insurance for any liability incurred by directors or officers provided again that they acted honestly and in good faith with a view to the best interests of the corporation. A director is jointly and severally liable to the corporation if he or she voted for or consented to a resolution authorizing:
(a) issuance of shares for consideration other than money when the consideration received is less than the fair equivalent of the money which the corporation would have received if the shares had been issued for money;
(b) payment of dividends where
(i) there are reasonable grounds for believing that the corporation is, or would be after payment, unable to pay its liabilities as they become due, or
(ii) the realizable value of the corporation’s assets would after the payment be less than the aggregate of its liabilities and stated capital of all classes, or in other words, “insolvent”;
(c) purchase, redemption or acquisition by the corporation of its own shares if there are reasonable grounds for believing that the corporation is “insolvent” or would be after the transaction;
(d) provision of financial assistance by means of a loan, guarantee or otherwise to any director, shareholder or associate thereof, or to any person in connection with the purchase of shares of the corporation without disclosure of the transaction to the corporation’s shareholders;
(e) payment of an unreasonable commission for the sale of shares;
(f) payment of an unauthorized indemnity to a director or officer.
In addition, subject to certain limitations in the Act, a director is jointly and severally liable to employees of the corporation for all debts for services performed but not exceeding the equivalent of 6 months’ wages.
“Jointly and severally liable” means that each director is liable to pay the full amount of any damages resulting from the acts of the directors. Correspondingly, each director is equally liable, so that where one director pays all of the damages, the other directors would be liable to compensate him or her for their respective shares. Directors who are present at a directors’ meeting are considered to have consented to resolutions passed or actions taken at that meeting unless they expressly abstain or dissent, request that their abstention be entered into the minutes, or can otherwise prove that they did not consent.
According to s 123(3) of the Act, directors will not be liable if they relied in good faith on:
(a) financial statements of the corporation represented by an officer of the corporation or its auditor to fairly reflect the financial condition of the corporation, or
(b) any opinion or report of a lawyer, accountant, engineer, appraiser or other person whose profession lends credibility to a statement made by them.
Directors or officers of the corporation are required to disclose to the corporation in writing the nature and extent of their involvement whenever they are a party, directly or indirectly, to a material contract with the corporation. Furthermore, there is a prohibition against the involved director voting on any resolutions considering such a contract. If the director fails to disclose his or her material interest at the meeting in which the proposed contract is first considered, any shareholder of the corporation may apply to the court to have the contract set aside. A general notice to the directors from a director or officer is sufficient disclosure of an interest in relation to any contract between the corporation and a person in which the director or officer has a material interest. The notice must declare that he or she is a director or officer, that he or she has a material interest in the contract or other contracting party, and must state the nature and extent of the interest. General notice should generally be given within the 12-month period immediately preceding the meeting at which the proposed contract was first considered.
The Income Tax Act provides that the directors of a corporation may be jointly and severally liable together with the corporation for any tax required to be withheld, deducted or remitted, including any interest and penalties related to the failure to withhold, deduct or remit.
Similar provisions apply to GST, Canada Pension Plan and Employment Insurance amounts.
A director may be liable for failure to comply with Canadian Anti-Spam Legislation respecting electronic communications.
Corporations incorporated under the Canada Business Corporations Act, and anticipated to be a requirement of Corporations incorporated under the Alberta Business Corporations Act, are required to keep a register of "individuals with significant control" over the Corporation.
The Corporation must take reasonable steps to inquire and for any individual that has significant control the Corporation must keep track of the following recording it in a corporate register [a "Control Register"]:
- Description of how the individual is considered to be an individual with significant control;
- The individual's country of residence, complete contact information, and date of birth;
- The date the individual became and ceased to be an individual of significant control.
The Corporation must update the Control Register regularly.
Directors, officers and Shareholders of the Corporation can face fines and jail time for failing to comply with the applicable requirements.
The foregoing are some of the legal considerations involved in incorporating and there can be more to consider depending upon the particular needs of your business.
It should also be noted that in addition to the legal considerations for incorporation, there may be additional considerations such as tax, accounting, canada revenue agency, licensing, regulatory, industry, insurance and other requirements and considerations and liabilities.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements and liabilities.
Incorporation isn't difficult, but there is a lot to consider, and there may well be more that you need to consider as your business and circumstances are as unique as you are. While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We assist our clients in incorporating their business and determine the corporate structure that works for their business, so contact us today to see how we can assist you with your legal needs.
What are annual returns and what are some of the ongoing annual corporate governance requirements of a Corporation?
For certain privately held Corporations the Business Corporations Act [Alberta] requires as follows:
1. Filing of an Annual Return;
The Annual Return for the Corporation must be filed with Alberta Registries in order to keep the Corporation subsisting and up-to-date under the Business Corporations Act [the “Act”] on or before the last day of the month following the anniversary date of incorporation.
If the Annual Return is not filed, in due course, the Corporation will be subject to being dissolved and struck off the register.
2. Annual Director’s Meeting or Resolutions;
The Act requires the Directors to approve financial statements and present the financial statements to the Shareholders for their review and approval at an annual general meeting.
3. Annual General Shareholder’s Meeting or Resolutions
The Corporation must hold an annual general meeting of its Shareholders once in every calendar year and not more than fifteen months after the holding of the immediately preceding annual general meeting.
The Act requires the Shareholders’ to in an Annual Meeting or Resolutions attend to certain matters including the following:
While not a requirement of the Act, in the event that an audit is waived then the annual general meeting is also used to confirm the appointment of Accountants for the Corporation as accountants and not auditors.
Also, while not a requirement of the Act, meetings or resolutions may be required for remuneration and bonuses to officers and directors, dividends to shareholders and other matters. There may as well be additional requirements depending upon the status of the Corporation.
4. Control Register
Corporations incorporated under the Canada Business Corporations Act, and anticipated to be a requirement of Corporations incorporated under the Alberta Business Corporations Act, are required to keep a register of "individuals with significant control" over the Corporation.
The Corporation must take reasonable steps to inquire and for any individual that has significant control the Corporation must keep track of the following recording it in a corporate register [a "Control Register"]:
The Corporation must update the Control Register regularly.
Directors, officers and Shareholders of the Corporation can face fines and jail time for failing to comply with the applicable requirements.
The above requirements are separate and in addition to other legal requirements of the Corporation, such as accounting, tax, regulatory, licensing, insurance and other business requirements.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We provide the legal services required by our client's to meet these requirements, so contact us today to see how we can assist you with your legal needs.
1. Filing of an Annual Return;
The Annual Return for the Corporation must be filed with Alberta Registries in order to keep the Corporation subsisting and up-to-date under the Business Corporations Act [the “Act”] on or before the last day of the month following the anniversary date of incorporation.
If the Annual Return is not filed, in due course, the Corporation will be subject to being dissolved and struck off the register.
2. Annual Director’s Meeting or Resolutions;
The Act requires the Directors to approve financial statements and present the financial statements to the Shareholders for their review and approval at an annual general meeting.
3. Annual General Shareholder’s Meeting or Resolutions
The Corporation must hold an annual general meeting of its Shareholders once in every calendar year and not more than fifteen months after the holding of the immediately preceding annual general meeting.
The Act requires the Shareholders’ to in an Annual Meeting or Resolutions attend to certain matters including the following:
- Receive and review the financial statement approved by the Directors, and further information required by s. 149 of the Act;
- If appropriate and applicable waive the requirement of an audit and audited financial statements;
- Elect Directors of the Corporation as may be required;
While not a requirement of the Act, in the event that an audit is waived then the annual general meeting is also used to confirm the appointment of Accountants for the Corporation as accountants and not auditors.
Also, while not a requirement of the Act, meetings or resolutions may be required for remuneration and bonuses to officers and directors, dividends to shareholders and other matters. There may as well be additional requirements depending upon the status of the Corporation.
4. Control Register
Corporations incorporated under the Canada Business Corporations Act, and anticipated to be a requirement of Corporations incorporated under the Alberta Business Corporations Act, are required to keep a register of "individuals with significant control" over the Corporation.
The Corporation must take reasonable steps to inquire and for any individual that has significant control the Corporation must keep track of the following recording it in a corporate register [a "Control Register"]:
- Description of how the individual is considered to be an individual with significant control;
- The individual's country of residence, complete contact information, and date of birth;
- The date the individual became and ceased to be an individual of significant control.
The Corporation must update the Control Register regularly.
Directors, officers and Shareholders of the Corporation can face fines and jail time for failing to comply with the applicable requirements.
The above requirements are separate and in addition to other legal requirements of the Corporation, such as accounting, tax, regulatory, licensing, insurance and other business requirements.
Also, there are certain professionals in Alberta that are required to incorporate "Professional Corporations" that carry with it additional considerations and requirements.
While this information can be helpful it is not legal advice, and it is important that you get legal advice that applies to you and your circumstances.
We provide the legal services required by our client's to meet these requirements, so contact us today to see how we can assist you with your legal needs.
What is a registered office and why does a company need one?
A corporation must file several addresses with Corporate Registries.
One of the addresses a corporation must file is a registered office and part of the public record of the corporation filed at Corporate Registries.
The Business Corporations Act [Alberta] requires that:
It is very important to note that the registered office [as well as the address for service via mail] is the address at which the corporation can be served with legal documents, and if the documents are properly served then the corporation's receipt of the legal documents are deemed so it is of utmost importance that the registered office [and address for service via mail] be located at a reliable mailing and business address.
We provide registered offices services, and you can contact us today to see how we can assist you with your legal needs.
One of the addresses a corporation must file is a registered office and part of the public record of the corporation filed at Corporate Registries.
The Business Corporations Act [Alberta] requires that:
- At all times a corporation has a registered office in Alberta;
- A post office box cannot be the registered office [although it can be the corporation's address for service by mail];
- A corporation's office must be readily identifiable from the address given and accessible to the public during normal business hours;
- An e-mail address for Alberta Corporate registries to provide annual returns to;
- And the corporation shall maintain the corporate records there, unless the corporation designates a records address.
It is very important to note that the registered office [as well as the address for service via mail] is the address at which the corporation can be served with legal documents, and if the documents are properly served then the corporation's receipt of the legal documents are deemed so it is of utmost importance that the registered office [and address for service via mail] be located at a reliable mailing and business address.
We provide registered offices services, and you can contact us today to see how we can assist you with your legal needs.
What is an agent for service and why does a company need one?
A corporation is an independent legal entity that has its own rights and obligations, however, a corporation is not a physical entity, and so the Alberta Business Corporation's Act requires an individual located in Alberta to be appointed by the Corporation and filed at Corporate Registries as part of the public record to be the person by whom notices can be serviced in person or by mail on behalf of the corporation.
The requirement of an Agent for Service arise at the time the Alberta Business Corporations Act was amended to remove the residency requirement for the Board of Directors of a Corporation.
Please contact us if you require an Agent for Service.
The requirement of an Agent for Service arise at the time the Alberta Business Corporations Act was amended to remove the residency requirement for the Board of Directors of a Corporation.
Please contact us if you require an Agent for Service.
What is extra-provincial registration and why is it required?
A company is an entity that is created, authorized and empowered by the laws of the jurisdiction in which it is incorporated. Under Canada's constitution, each Province is responsible for the civil rights in its jurisdiction. So, the Provinces can enact legislation, and create and maintain the corporate registries which recognize corporations. While it is a bit more complicated than that, there is some shared jurisdiction and the Federal Government also has legislation and a corporate registry for corporations incorporated under federal laws.
If a company is incorporated outside of Alberta and it wants to carry on business in alberta, then it needs to extra-provincially register in Alberta so that it is recognized by Alberta legislation and corporate registries.
A company is generally considered by Alberta Corporate Registries to be carrying on business in Alberta if it:
To extra-provincially register a company needs to assemble certain documentation make the appropriate filings at Alberta Corporate Registries.
There is a streamlined process for companies incorporated in British Columbia, Saskatchewan and Manitoba under the New West Trade Agreement between those Provinces. This streamlined process has company reserve the name in Alberta and then proceed with the extra-provincial registration proceed in the companies' home jurisdiction. So, companies incorporated in British Columbia, Saskatchewan and Manitoba should contact a lawyer in their home jurisdiction to extra-provincially register in Alberta.
It should be noted that extra-provincial registered corporations also require an Agent for Service. A corporation, extra-provincial or otherwise, is not a physical entity, and so the Alberta Business Corporation's Act requires an individual located in Alberta to be appointed by the Corporation and filed at Corporate Registries as part of the public record to be the person by whom notices can be serviced in person or by mail on behalf of the corporation.
This is a long standing requirement for extra-provincial registration, as even prior to the amendment of the Alberta Business Corporations Act to require an Agent for Service for every company [as there is no longer a residency requirement for the Board of Directors of a company] an extra-provincial attorney for the company.
Please contact us if you require assistance with extra-provincially registering in Alberta or an Agent for Service.
If a company is incorporated outside of Alberta and it wants to carry on business in alberta, then it needs to extra-provincially register in Alberta so that it is recognized by Alberta legislation and corporate registries.
A company is generally considered by Alberta Corporate Registries to be carrying on business in Alberta if it:
- it solicits business in Alberta;
- its name, or any name under which it carries on business, is listed in an Alberta telephone directory or appears in any advertisement with an Alberta address;
- it has a resident agent, representative, warehouse, office or place of business in Alberta;
- it is licensed or registered, or required to be licensed or registered, under any Act of Alberta allowing it to carry on business; or
- it owns land in Alberta.
To extra-provincially register a company needs to assemble certain documentation make the appropriate filings at Alberta Corporate Registries.
There is a streamlined process for companies incorporated in British Columbia, Saskatchewan and Manitoba under the New West Trade Agreement between those Provinces. This streamlined process has company reserve the name in Alberta and then proceed with the extra-provincial registration proceed in the companies' home jurisdiction. So, companies incorporated in British Columbia, Saskatchewan and Manitoba should contact a lawyer in their home jurisdiction to extra-provincially register in Alberta.
It should be noted that extra-provincial registered corporations also require an Agent for Service. A corporation, extra-provincial or otherwise, is not a physical entity, and so the Alberta Business Corporation's Act requires an individual located in Alberta to be appointed by the Corporation and filed at Corporate Registries as part of the public record to be the person by whom notices can be serviced in person or by mail on behalf of the corporation.
This is a long standing requirement for extra-provincial registration, as even prior to the amendment of the Alberta Business Corporations Act to require an Agent for Service for every company [as there is no longer a residency requirement for the Board of Directors of a company] an extra-provincial attorney for the company.
Please contact us if you require assistance with extra-provincially registering in Alberta or an Agent for Service.