Topics: What's New from the Charities Directorate of CRA, Canadian Charity Law, ONCA, New corporate non-profit acts, Non-Profits that are not registered charities
The Canada Not-for-profit Corporations Act (“CNCA”) permits a not-for-profit corporation that is incorporated under another act (such as a provincial non-profit act) to continue (import) to the CNCA provided that the other act permits the continuance. This allows a not-for-profit corporation to effectively re-incorporate under the CNCA and be governed by it as though it was incorporated under it. The The Federal government has now made it easier for Ontario corporations to move to Federal jurisdiction by pre-approving Ontario and no longer requiring a legal opinion that the transfer can take place for Ontario corporations. This will be helpful for some of the 50,000 Ontario corporations who may wish to skip ONCA and move directly to the CNCA.
As noted on Corporations Canada’s website, an application for continuance to the CNCA must include the following items:
What documents must be filed to continue (import) a not-for-profit corporation?
An application for continuance must include:
- a completed and signed copy of Form 4011: Articles of Continuance (import) (See available instructions);
- a completed and signed copy of Form 4002: Initial Registered Office and First Board of Directors (See available instructions);
- a Nuans Name Search Report for the proposed name of the corporation that is not more than 90 days old. If you have received prior approval of the name, attach a copy of the letter from Corporations Canada approving the name along with the copy of the Nuans Name Search Report. If the proposed name is a number name, a Nuans Name Search Report is not required; and
- the filing fee, although there is no fee if the not-for-profit corporation is governed by another federal act.
- The articles can be in English or French or in a bilingual format.
If the not-for-profit corporation is governed by an act that has been pre-approved by Corporations Canada also include:
A letter of approval from the legislative authority that administers the act currently governing the not-for-profit corporation. This document is not required if the not-for-profit corporation is governed by another federal act.
If the not-for-profit corporation is not governed by another federal act or by an act that has been pre-approved by Corporations Canada, the following documents must also be filed:
- A letter of approval from the legislative authority that administers the act currently governing the not-for-profit corporation.
- A copy of the sections of the act under which the not-for-profit corporation currently exists showing that the continuance is permitted.
- A signed legal opinion by counsel qualified to practice in the jurisdiction where the not-for-profit corporation is incorporated, stating that:
-the non-federal law permits continuances to the NFP Act,
-once the not-for-profit corporation is continued under the NFP Act, the non-federal law will cease to apply to it, and
-in cases where the other legislative authority does not make it a practice to issue a formal authorization for continuance, the not-for-profit corporation meets all the requirements for export under the act.
Our firm has been doing continuances from the Ontario Corporations Act (“OCA”) to the CNCA since the CNCA came into force. Initially, the OCA was not listed as a pre-approved Act by Corporation Canada so the additional documents listed for not-for-profit corporations that were not governed by a pre-approved act had to be prepared and submitted.
The OCA now along with the following 3 Acts are currently listed as pre-approved Acts by Corporations Canada, which reduces the amount of documents that need to be prepared and submitted to continue to the CNCA. The other 3 acts are The Corporations Act (Manitoba), the Non-profit Corporations Act (Saskatchewan) and the Newfoundland & Labrador Corporations Act.
Here is a recent article in which we discuss the idea of Ontario non-profits under the OCA moving to the CNCA. Fed up with ONCA yet? Consider skipping it altogether and moving to the Federal CNCA
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.