Authors: David M. Overall, Nathan Cramer, Steven Robertson
The British Columbia provincial government has issued an Order in Council amending the regulations regarding the new transparency register requirements for B.C. corporations and postponing implementation until October 1, 2020.
The transparency register requirements were initially set to come into force on May 1, 2020, but the unprecedented economic and social disruption of the COVID-19 pandemic has necessitated the postponement of their effectiveness. The Order in Council also amends the regulations concerning the scope of and exceptions to the transparency register.
Transparency Register – Overview
In December 2017 the Federal and provincial governments agreed to take steps to combat money laundering, tax evasion and terrorist financing. As part of this process, corporate statutes are being amended to enhance transparency by requiring certain companies to maintain accurate and up-to-date registries of beneficial owners and make them available to law enforcement, taxation and other authorities.
Canada has already amended the Canada Business Corporations Act to require private federal corporations to create and maintain a register of “Individuals with Significant Control”, and now several of the provinces are following suit. In British Columbia, when amendments to the B.C. Business Corporations Act (the “BCBCA”) come into force, private companies governed by BCBCA will need to maintain a transparency register detailing significant individuals – that is, an individual able to exercise a significant degree of control over the company (a “Significant Individual”). Reporting issuers, reporting issuer equivalents, companies listed on qualifying stock exchanges, and other prescribed classes of companies are exempt from these requirements.
Significant Individuals are those with:
- interests in a significant number of shares in the company (i.e. 25% of the shares or votes); or
- rights to elect, appoint or remove a majority of the directors of a company.
If individuals jointly own shares that meet the definition of Significant Individual, then all those individuals must be listed on the transparency register. Additionally, if groups of individuals are acting in concert and their combined interests meet the definition, those individuals must be listed. Lastly, if those with familial relationships (i.e. spouses, parental relationships, or otherwise relatives) have a combined interest that meet the definition, they must also be listed.
The transparency register must also list those able to exercise significant indirect control. Indirect control arises where there is an intermediate legal entity or person (known as an “intermediary”) between the private company and the significant individuals. This may occur where the shareholder or rightsholder is not a natural person, or is holding the votes or shares on behalf of another. An individual has indirect control if they:
- control an intermediary who is the registered owner of the shares;
- control a chain of intermediaries with a hierarchal relationship, the last of which is the registered owner of the shares that amount to 25% or more of the total shares or voting shares; or
- have the ability to exercise direct and significant influence over an individual who has the right or indirect right to elect, appoint or remove one or more directors.
The requirement to list individuals with such control contemplates complex corporate structures where ownership must be traced up a chain of intermediaries, including corporations, partnerships, trustees, or other legal representatives of an intermediary that may be deemed to have indirect control. Ultimately it is the natural person controlling the intermediary that must be listed in the transparency register. However, if no natural individual can be identified, that must be stated in the transparency register.
Exceptions for Special Intermediaries
The recently issued Order in Council introduces a class of “special intermediaries” that includes, among other things, public companies and wholly-owned subsidiaries of public companies, credit unions and federal or provincial statutory corporations. As a result, the presence of a special intermediary in the chain of ownership or control of a private B.C. company relieves that company of the obligation to further trace ownership or control beyond the special intermediary. If a special intermediary exists in a chain of intermediaries as the registered or beneficial owner of the shares of a private company, no individual above the special intermediary in the chain of intermediaries will be deemed to be exercising indirect control over such shares. Similarly, where a special intermediary holds the right to elect, appoint or remove directors of the company, no individual above the special intermediary in the chain of intermediaries will be held as indirectly controlling that right.
Information Required for Register
For each Significant Individual the transparency register must detail:
- their name, birthdate and last known address;
- whether they are a Canadian citizen or permanent resident of Canada, and if not, every country of which they are citizen;
- whether they are a resident in Canada for Canadian income tax purposes;
- the date on which they became or ceased to be a Significant Individual; and
- a description of how they are a Significant Individual.
The register may be kept in electronic, microfilm or paper form. It must be kept at the company’s registered records office, and may be accessed by members of the RCMP, the B.C. Ministry of Finance, the Canada Revenue Agency, the B.C. Securities Commission, or other regulatory or law enforcement bodies, for the purpose of enforcing laws or assisting in the administration of law enforcement.
Moving forward, it may become necessary for private companies to include the transparency register information in a centralized registry maintained by the provincial government and accessible to the public. The B.C. Ministry of Finance is currently engaged in consultations on this point and may follow the lead of other jurisdictions, such as the United Kingdom, where similar public beneficial ownership registries have been introduced.
As mentioned above, certain classes of companies are excluded from the requirement to maintain a transparency register. Reporting issuers, reporting issuer equivalents and companies listed on qualifying stock exchanges are exempt, as are certain prescribed classes of companies. The new regulations expand these prescribed classes to include:
- companies that are wholly-owned subsidiaries of public companies;
- certain insurance and trust companies;
- certain government corporations;
- wholly-owned subsidiaries of companies created by B.C. statute;
- companies incorporated or wholly owned by municipalities and regional districts;
- a company that operates as an independent school; and
- companies wholly owned by one or more Indigenous Nations.
How to Proceed
It is important that private companies governed by the BCBCA prepare for the implementation of the transparency register requirements. Failing to properly maintain a transparency register may result in fines of up to $50,000 for individuals and $100,000 for companies. Companies may at any time request a shareholder provide the company with the necessary information to maintain its transparency register. Additionally, companies must also update their register within 30 days after becoming aware of any new or altered information to be listed.
Contact any of the members of our corporate/commercial group for further information on meeting the transparency register requirements.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.