Not-for-profit corporations all over Canada seem to be increasing their presence in many provinces and territories. Whether their presence is simply to provide members with a local (i.e. provincial or territorial) contact or to actively participate and raise funds in those provinces or territories, not-for-profit corporations aren’t always aware that they may need to register in order to be active in that province or territory.
The following information summarizes some, and by no means all, of the registration and ongoing obligations that stem from operating in jurisdictions other than the one in which the not-for-profit corporation was incorporated. Note that federally incorporated not-for-profit corporations are not necessarily exempted from these requirements. We will consider the requirements in some jurisdictions this time, and will consider several more in our next edition.
B. JURISDICTIONAL REQUIREMENTS
According to the Business Corporations Act of Alberta, a corporation (including a not-for-profit) that “carries on business” in Alberta is required to register with the province. A corporation carries on business in Alberta if:
- its name, or any name under which it carries on business, is listed in a telephone directory for any part of Alberta;
- its name, or any name under which it carries on business, appears or is announced in any advertisement in which an address in Alberta is given for the extra-provincial corporation;
- it has a resident agent or representative or a warehouse, office or place of business in Alberta;
- it solicits business in Alberta;
- it is the owner of an estate or interest in land in Alberta;
- it is licensed or registered or required to be licensed or registered under any Act of Alberta entitling it to do business;
- it is, in respect of a commercial vehicle as defined in the Traffic Safety Act, the holder of a certificate of registration under the Traffic Safety Act, unless it neither picks up nor delivers goods or passengers in Alberta;
- it is the holder of a certificate as defined in section 130 of the Traffic Safety Act, unless it neither picks up nor delivers goods or passengers in Alberta; or
- it otherwise carries on business in Alberta.
In addition to the initial registration, annual filings are required by the province.
If a corporation does not register within 30 days after it commences carrying on business in Alberta, or fails to meet the ongoing obligations (annual returns), the registrar may cancel the registration and has the power to fine the corporation for contravening provisions in the Business Corporations Act.
Extra provincial societies may apply to register in the Province of British Columbia, in accordance with the Society Act and may only conduct operations in British Columbia if registration is granted. An extra-provincial society is defined in the Society Act as a society or association, incorporated or otherwise formed outside British Columbia, and includes a branch of that society or association, but does not include a society or association, incorporated or otherwise formed to acquire profit or gain or that has a capital divided into shares.
In addition to the initial requirements upon registration, annual reports must be filed with the province within 30 days following each annual general meeting.
An unregistered society cannot maintain a court proceeding in British Columbia in connection with its operations. Additionally, it cannot acquire or hold an interest in land in the province or register title to land under the Land Title Act unless it is registered. The legislation also provides that a corporation that contravenes the act is liable to a fine.
Non-share capital corporations (i.e. not-for-profit corporations) must register under the Corporation Act of Manitoba in order to conduct business in Manitoba. A corporation is carrying on business in Manitoba if it:
- has a resident agent or representative, or a warehouse, office or place of business in Manitoba;
- has a name and address listed in a Manitoba telephone directory;
- has its name and address included in a Manitoba advertisement for the business or any product of the corporation;
- is the registered owner of real property; or
- otherwise carries on business in Manitoba.
Once registered, the corporation must file its annual return on the date not later than the last day of the month immediately following the corporation’s anniversary month.
Every corporation, officer, director, agent and/or representative acting on behalf of the corporation is guilty of an offence and liable for a penalty of $50 for each day on which business is carried on while unregistered.
The Business Corporations Act of the Northwest Territories establishes that every extra-territorial corporation shall be registered within 30 days after commencing to do business in the Northwest Territory. A corporation is carrying on business in the Northwest Territory if it does any of the following:
- its name is listed in a telephone directory;
- its name appears or is announced in any advertisement in which an address in the NWT is given for it;
- it has a resident, agent, warehouse, office, or place of business/operations;
- it solicits business;
- it owns an estate or land interest;
- it is licensed or registered (or required to be) under any Act entitling it to do business or carry on operations; or
- it otherwise carries on business.
Extra-territorial corporations must file an annual return on or before the last day of the month following its anniversary month. The anniversary month is the same month in which the corporation was incorporated.
An extra-provincial corporation, other than a federal corporation, that is not registered under the Business Corporations Act may not commence or maintain an action in respect of a contract made within the province in the course of carrying on an undertaking. Notwithstanding this, if the corporation becomes registered the action may be maintained as if the corporation had been registered before beginning the action. A corporation that contravenes the Business Corporations Act is guilty of an offence and is liable to a fine.
Extra-territorial corporations must register pursuant to the Business Corporations Act of Nunavut within 30 days of commencing to carry on business in Nunavut. Notably, Schedule B of the legislation sets out a fee for the registration of an “extra-territorial corporation that does not carry on business for gain”. An extra-territorial corporation carries on business if:
- its name, or any name under which it carries on business or operations, is listed in a telephone directory for any part of Nunavut;
- its name, or any names under which it carries on business or operations, appears or is announced in any advertisement in which an address in Nunavut is given for the extra-territorial corporation;
- it has a resident agent or representative or a warehouse, office or place of business or operations in Nunavut;
- it solicits business in Nunavut;
- it is the owner of any estate or interest in land in Nunavut;
- it is licensed or registered or required to be licensed or registered under any Act in Nunavut entitling it to do business or carry on operations; or
- it otherwise carries on business or operations in Nunavut.
Annual filings must be filed with the Registrar in order to remain registered. An unregistered corporation is unable to commence any action or proceeding in Nunavut and may be subject to a fine for contravening the legislation.
Under the Non-Profit Corporations Act, 1995 of Saskatchewan, not-for-profit corporations must register if they are carrying on business in the province. A corporation is carrying on business if it holds title or interest in land, or if it maintains an office, warehouse, place of business or telephone number in the province.
An annual return must be filed on a yearly basis.
A corporation that is not registered pursuant to the legislation is not capable of commencing or maintaining any action or other proceeding in a court respecting a contract made in whole or in part in Saskatchewan in the course of, or in connection with, its activities. A corporation that fails to comply with the legislation is liable to a fine.
According to the Business Corporations Act of the Yukon, extra-territorial corporations are required to register in the Yukon within 30 days after beginning to carry on business.
A corporation carries on business in the Yukon if it transacts any of the ordinary business of an extra-territorial corporation whether or not the corporation has a resident agent or representative or a warehouse, office or place of business in the Yukon.
An annual return must be filed with the registrar in order to remain registered. An unregistered corporation, which carries on business, cannot commence or maintain any legal action and is liable to a fine for contravening the legislation.
As evidenced above, there are slight variations in the registration requirements from one jurisdiction to another. However, one aspect that seems to remain constant is the liability to a fine if the jurisdictional legislation, which often includes the requirement to register, is contravened. Additionally, filing requirements also vary in terms of the information required, the fees, the name searches that must be done, etc.
As such, prior to operating in a jurisdiction other than the one in which the not-for-profit corporation was incorporated, corporations are encouraged to consider the requirements and seek legal advice to fully understand the implications at the outset and in the long run.