As of January 1, 2023, all private corporations incorporated or continued under the Business Corporations Act of Ontario, other than private corporations that are wholly-owned subsidiaries of a public company, are required to prepare and maintain a register of individuals with significant control over the corporation (the “ISC Register”). The new requirements are part of an effort to increase transparency around beneficial ownership of privately-held corporations and to curb illegal activities such as money laundering, tax evasion, and terrorist financing. The new rules are in line with the requirements that are already in place for federal corporations and corporations in a number of other Canadian provinces.
Who are Individuals with Significant Control?
Each of the following is an individual with significant control over a corporation (an “ISC”):
- An individual who is a registered holder, is a beneficial owner, and/or has direct or indirect control or direction (or has a combination of the foregoing interests or rights) over:
- any number of shares that carry 25% or more of the voting rights attached to all of the corporation’s outstanding voting shares; or
- any number of shares that is equal to 25% or more of all of the corporation’s outstanding shares measured by fair market value.
Two or more individuals are each considered to be an ISC, each to be listed on the ISC Register, if in respect to the above-mentioned number of shares:
- an interest or right, or a combination thereof: (A) is jointly held by those individuals; or (B) is subject to an agreement or arrangement under which the rights are to be exercised jointly or in concert by those individuals; or
- each of those individuals are related persons (specifically, spouse, child, or any other relative of the individual or the individual’s spouse who has the same home as the individual).
- An individual who has any direct or indirect influence that, if exercised, would result in control in fact of the corporation. In making this determination as to control in fact, all relevant factors must be considered, and these factors need not include a consideration of whether or not that individual has a legally enforceable right or ability to effect a change in the board of directors or its powers (or to influence shareholders who have such right or ability).
In addition, the legislation specifies that control in fact does not arise only by reason of the individual’s influence over the corporation where the corporation and the individual are dealing with each other at arm’s length and the influence is derived from a franchise, licence, lease, distribution, supply, or management agreement, or other similar agreement or arrangement, the main purpose of which is to govern the relationship between the corporation and the individual regarding the manner in which the corporation’s business is conducted.
Note that new classes of ISC may be established by future regulations.
What Information Must be Listed on the ISC Register?
The ISC Register must contain the following information with respect to each ISC:
- name, date of birth, and last known address of the ISC
- jurisdiction of residence for tax purposes of the ISC
- date on which the individual became and ceased to be an ISC
- description of how such individual meets the definition of an ISC, including, as applicable, a description of the individual’s interests and rights in respect of shares of the corporation
- a description of each step taken by the corporation to identify ISCs and to update the information in the ISC Register
- other information that may be required by future regulations
Where Must the ISC Register be Kept?
The ISC Register must be kept at the corporation’s registered office or at another place in Ontario designated by the corporation’s directors.
If they have not yet done so, private Ontario Corporations should promptly take steps to gather the required information and prepare their ISC Registers to ensure compliance with the new transparency requirements.