Authors: Celia Valel, Kristél Kriel
Provincial non-profit legislation imposes a number of obligations on non-profit and charity organizations, such as the requirement to hold an annual general meeting (AGM) and file annual returns.
However, as a result of COVID-19, British Columbia, Alberta, Saskatchewan and Manitoba have all announced prohibitions/restrictions on group gatherings, which may impede a non-profit organization’s ability to hold its AGM and file its annual returns. This blog briefly outlines some key considerations for non-profit organizations in Western Canada considering how to proceed with these prohibitions/restrictions in place.
Relief for Organizations
In light of the measures being taken to reduce the transmission of COVID-19, some provincial governments have relaxed or suspended statutory obligations for non-profit organizations. Below is a brief summary of current relief measures for non-profit and charity organizations announced in British Columbia, Alberta, Saskatchewan and Manitoba.
In order to operate in the province of British Columbia, a non-profit organization (or “society”) must be registered under the Societies Act, SBC 2015, c 18. Incorporated societies must hold an AGM each calendar year and file an annual report within 30 days of the AGM. A society may apply to the registrar by December 31 of the calendar year in which the AGM must be held for an extension to hold its AGM for a given year at a later date, which is not later than March 31 of the following year. If a society fails to hold an AGM for two consecutive calendar years, the registrar may send a notice of dissolution to the society.
Societies now have the option to hold their AGM virtually even if its bylaws or the Societies Act provide otherwise. This is the result of a ministerial order issued by the British Columbia Minister of Public Safety and Solicitor General. The ministerial order will remain in force for the duration of the state of emergency in British Columbia.
Non-profit organizations can be incorporated under the Societies Act, RSA 2000, c S-14 or the Companies Act, RSA 2000, c C-2.1 in Alberta. Both the Societies Act and the Companies Act require non-profit organizations to hold an AGM and submit an annual report to the Alberta Corporate Registry.
The government of Alberta has suspended the deadlines for non-profit organizations to hold their AGM and file their annual returns. Non-profit organizations will remain active in Alberta and will not be dissolved for failing to file their annual returns.
The Non-Profit Corporations Act, 1995, SS 1995, c N-4.2 governs non-profit corporations in Saskatchewan. The Act requires non-profit corporations to hold an AGM and submit an annual return to the Saskatchewan Corporate Registry. Failure to submit any return, notice or other document or fee required by The Non-Profit Corporations Act can result in the non-profit corporation being struck from the Corporate Registry. These are commonly referred to as “strike-off provisions”.
The government of Saskatchewan has suspended the strike-off provisions of The Non-Profit Corporations Act so that non-profit corporations will not be penalized for failing to submit required returns, notices or other documents or fees.
The Corporations Act, CCSM c C225 governs non-profit corporations in Manitoba. The Corporations Act is applicable to both corporations with share capital and corporations without share capital. Similar to the other provinces described above, non-profit corporations in Manitoba are required to hold an AGM and submit an annual report.
To date, the Manitoba Companies office has not suspended the strike-off provisions contained in The Corporations Act for any type of corporate entities, including non-profit organizations.
Non-profit organizations can also be incorporated under the federal Canada Not-for-profit Corporations Act, SC 2009, c 23. Federally incorporated non-profit organizations are required to hold an AGM and file an annual return with Corporations Canada each year to remain active. Corporations Canada has extended the annual return deadline to September 30, 2020 for federally incorporated non-profit organizations whose anniversary date is between February 1 and June 30. Normally, non-profit organizations are required to file their annual return within 60 days of their anniversary date.
Options for Organizations
There are a number of possible options available to non-profit organizations to proceed in light of COVID-19, such as postponing or holding alternative forms of AGMs or obtaining written resolutions. Non-profit organizations are unique and the availability of options will depend on a specific organization’s governing legislation, constating documents, membership, and circumstances. These will need to be assessed on a case-by-case basis.