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Business Law

Update on Beneficial Ownership Transparency Registers Under the CBCA, Ontario and Quebec Models

Jan 26th, 2022

By Daniel Frajman

There have been recent developments in various Canadian jurisdictions concerning the corporate beneficial ownership registers, to briefly bring to your attention.  For your general interest, see at this link my article that has just appeared in Tax Topics (published by Wolters Kluwer), referring to matters that have recently come up at the Ontario, Quebec and Canadian Federal levels.  [Read article]  Ontario has tabled a bill for an internal register for each private Ontario (OBCA) corporation and relating to corporate control (slated at present to come into force in 2023), along the lines of the federal CBCA register, but with Ontario also cumulating the corporate holdings of related individuals and placing on the register the entire related group if their cumulative stake for example exceeds the 25% minimum of votes or value in the subject corporation; Quebec passed into law in mid-2021 with last minute changes its rules for individuals who are ultimate beneficiaries (Quebec’s term for those with significant control) and whose identity is to be posted on a public online register (slated at present to come into force by October 2022), applying essentially to all entities from anywhere carrying on business in Quebec, but pending receipt of some hoped for regulatory or administrative guidance, one aspect that remains unclear under the Quebec rules is how to determine individuals in control of a trust with a significant stake in the corporation, where the trust beneficiaries’ interests are discretionary; at the Federal level, relating to the internal registers for CBCA corporations that have been in force since June 2019, there is speculation that 2022 will bring regulatory guidance to shed some further light on grey areas in the rules.

An additional technical point to briefly bring to your attention:  when determining control in fact (de facto control) of the subject corporation, which is an additional ground for finding significant control/ultimate beneficiary status beyond the minimum 25% interest, both Quebec and Ontario incorporate equivalent definitions from respectively the Quebec Taxation Act (sections 21.25 and 21.25.1) and the Federal Income Tax Act (subsections 256(5.1) and 256(5.11)) so as to explicitly include in de facto control operational control and not only a right to effect a change to the board of directors and its powers.   Though not clear, It is possible that the Federal rules under the CBCA for determining de facto control do not extend to operational control.

Some additional details on many of these issues are referred to in my just published article at the link above.

Please be in touch with me with questions or comments or if further details are needed on this or other matters.