Introduction
Bill 24, Business Corporations Amendment Act, 2019, received Royal Assent on May 16, 2019 and will come into force on May 1, 2020. When Bill 24 comes into force it will introduce a new transparency register requirement for all privately held companies organized under the British Columbia Business Corporations Act (“BCBCA“).
Bill 24 is intended to satisfy B.C.’s commitment under an agreement between all Canadian finance ministers in 2017 to help prevent money-laundering, tax evasion, and terrorist financing. It also helps BC conform with international obligations and the federal government of Canada which introduced a similar law in 2019.
What are the new requirements?
- Identify All Significant Individuals
Private companies in BC will be required to identity all significant individuals in their company. A significant individual is an individual who:
- owns a registered or beneficial interest, or has indirect control over:
- 25% percent or more of the issued shares of the company, or
- shares that carry 25% or more of the voting rights at a general meeting of the company;
- is not necessarily a shareholder but who has the right, indirect right, or ability to exercise direct and significant control over an individual who has the right to elect, appoint, or remove the majority of directors. For example, an individual pursuant to a shareholder agreement who has the right to appoint the majority of directors and who is not a 25% shareholder;
- has an agreement or arrangement to act in concert with another individual or individuals to give them the combined power of a significant individual.
- Confirm Required Information on Significant Individuals and Create a Transparency Register
Once significant individuals are identified, companies will be required to take all reasonable steps to provide the following information in their transparency register:
- The individual’s full name, date of birth and last known address;
- Whether or not the individual is a Canadian citizen or permanent resident of Canada;
- If the individual is not a Canadian citizen or permanent resident of Canada, every country or state of which the individual is a citizen;
- Whether the individual is a citizen for tax purposes;
- The date on which the individual became and ceased to be a significant individual; and
- If there are no significant individuals, there must be a statement setting this out.
If a company is unable to obtain or confirm any of the above information, it must include the information it could obtain and a statement including the summary of steps it took to obtain or confirm the missing information.
- Update the Transparency Register
Companies will be required to take reasonable steps to confirm that all information in their transparency register is accurate, complete, and up to date within a two month period starting on the company’s annual filing date. Furthermore, all companies are required to update their transparency registers within 30 days after receiving any new information on significant individuals. Finally, companies will be required to notify all individuals within 10 days who are registered or removed as significant individuals. At this time, the BCBCA has not provided any further details on how this notice must be provided or what information must be included in this notice.
- Access to the Transparency Register
The transparency register may be viewed upon request by the directors of a company and “inspecting officials.” “Inspecting officials” can be tax authorities, law enforcement, or regulatory officials who must inspect the register only for enforcing the law. The transparency register is not available to the public and companies are allowed to limit access to their register to only two hours each business day.
- Be Aware of Hefty Fines for New Offences
It’s important that directors and officers of BCBCA companies start preparing a transparency register as Bill 24 will add several new offences. Companies will be liable for knowingly, authorizing, permitting, or acquiescing to:
- identifying an individual as a significant individual when they are not;
- excluding an individual who is a significant individual; and
- including or omitting information about a significant individual that makes the information provided false or misleading of any material fact.
It will also be an offence for a company that:
- fails to maintain and update the register, and
- fails to notify individuals who have been added or removed from the register.
Companies may be fined up to $100,000 and individuals up to $50,000 for these offences.
- Takeaway
The amendments to the BCBCA can impose significant new obligations on companies depending on the complexity of their corporate structures. However, as long as companies exercise reasonable due diligence to maintain accurate and up to date registers they will be able to respond to requests for information and avoid liability.
Companies are recommended to begin gathering the required information to identify significant individuals from their shareholders and others who qualify as significant individuals. The BC Government recently posted a sample transparency register template, examples of transparency registers, and a sample questionnaire which can be accessed from this link for reference.
For all those companies which we provide registered and records office services to, our guide will be emailed to you in the coming month. For those interested in speaking with us about this or to request assistance, please contact anyone from our Corporate Commercial practice group.