Corporations and Partnerships in Canada

Name: Corporations and Partnerships in Canada
Brand: Wolters Kluwer
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Wolters Kluwer (Verlag)

Erschienen am 18. Januar 2024

336 Seiten

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Inhalt

Front Cover
Half Title
Title
Copyright
The Author
The Original Contributors
Table of Contents
List of Abbreviations
Preface and Disclaimer
General Introduction
§1. THE GENERAL BACKGROUND OF THE COUNTRY
I. Geography
II. Cultural Composition
III. Political System
A. The Constitutional Division of Powers
B. Provinces
C. Territories
D. Municipal Governments
E. Indigenous Governments
F. The Judicial Power
G. Political Parties
IV. Population and Employment Statistics
A. Population Statistics
B. Employment Statistics
V. Corporation and Partnership Statistics
VI. Social and Cultural Values
VII. Privatization Efforts and Golden Shares
§2. THE HISTORICAL BACKGROUND OF CORPORATIONS AND PARTNERSHIPS
I. A Brief Canadian Historical Context
II. Partnerships
III. Corporations
IV. Securities Regulation
§3. DEFINITIONS AND STRUCTURE OF CORPORATIONS AND PARTNERSHIPS
I. Forms of Corporations and Partnerships Typically Used in Primarily For-Profit Activities
II. Distinction Between Structures and Consequences
A. General Partnerships, Limited Partnerships and Limited Liability Partnerships
B. Corporations
C. Public and Private Corporations
III. Non-profit Associations and Other Forms of Association
A. Other Corporate Forms
1. Co-operative Associations
2. Not-for-Profit Corporations or Incorporated Societies
3. Community Interest Companies and Community Contribution Companies
4. British Columbia Benefit Company
5. Various Other Corporate Statutes
B. Unincorporated Associations
C. Trusts
§4. SOURCES AND HIERARCHY OF THE LAW ON CORPORATIONS AND PARTNERSHIPS
I. International Sources
II. National, Provincial and Territorial Sources
A. Legislation
B. Case Law
C. By-Laws or Articles
D. Relationship Between By-Laws or Articles and Legislation
§5. INTERNATIONAL PRIVATE LAW
I. Intra-country 'International' Private Law in Canada
II. Potential Inconsistency in 'International Private Law' Even Between Jurisdictions Within Canada
III. Focus on Extra-provincial or Extra-territorial Corporation Registration
IV. Recognition of Foreign Corporations
V. Foreign Corporation Registration
§6. THE LABOUR LAW CONNECTION: CO-DETERMINATION AND CORPORATE STRUCTURE
Part I. Corporations (Companies)
Chapter 1. Widely-Held, or Public, Share Capital Corporations
§1. CHARACTERISTICS
§2. FORMATION
I. Formal Requirements for Incorporation
A. Initial Incorporation
B. Continuance
1. Import
2. Export
II. Notification, Registration, Incorporation, and Publicity
III. Contracts Made on Behalf of a Corporation (Company) Before Incorporation
IV. Number and Characteristics of Incorporators
V. Initial Share Capital
VI. Contribution in Kind
VII. Other Material Formation Requirements
§3. ESSENTIAL ELEMENTS OF THE LEGAL PERSON
I. Registered Office
II. Name
III. Objects Clause
IV. Commercial or Civil Character
§4. CAPITAL AND SHARES
I. Different Concepts of Capital: Nominal, Issued, Paid-Up, Minimum and Authorized Capital, Classes and Series of Shares, and Stated Capital Accounts
A. Nominal Capital and Stated Capital Accounts
B. Issuance of Shares
C. Paid Up
D. Minimum and Authorized Capital (No Minimum Capital Requirement and Limited Authorized Capital is Optional)
II. Alteration of Capital
III. Preferential Right of Subscription (Pre-emptive Rights to Subscribe for Shares)
IV. Issue of Shares at a Premium and at a Discount
V. Public Issue Prospectus Requirements
VI. Stock Exchange Introduction Requirements
VII. Forbidden Reductions of Capital and Acquisitions of Shares by the Corporation Itself
A. Capital Reduction
B. Solvency Tests for Acquisition of Shares and Other Reductions in Share Capital
C. Prohibition Against Corporation Holding Its Own Shares
VIII. Classes of Shares
A. Bearer or Registered Form
B. Presumption of Equality of Shares and Classes of Shares
C. Voting Rights
D. Dividend Rights
E. Rights on Winding-Up
F. Conversion Rights and Redemption Rights
G. Certificates and Share Warrants
H. Shares in Series
IX. Transfer of Shares
A. Registration
B. Sale or Gift of Shares
C. Stock Exchange Requirements
D. Protection of Shareholders in a 'Tender Offer' (or 'Takeover Bid')
E. Insider Trading
1. The Prohibition of Insider Trading or Informing
2. 'Issuer', 'Material Change', and 'Material Fact'
3. 'Special Relationship'
4. Penal, Civil, and Administrative Sanctions
5. Defences
6. Insider Reporting
7. Insider Trading Provisions in Incorporation Statutes
8. Federal Criminal Code Prohibition
X. (Mortgage) Debentures and Other Securities
A. Options and Rights
B. Trust Indenture
§5. SHAREHOLDERS, MANAGEMENT, AND CONTROL
I. Shareholder Control Mechanisms (Rights and Remedies)
A. Shareholder Meetings
1. Generally
2. Annual Meetings
a. The Requirement to Hold an Annual Meeting
b. Quorum
c. Notice Requirements
d. Resolution in Lieu of Meeting
3. Special Meetings
a. Special Meetings are Discretionary
b. Quorum
c. Notice
d. Resolution in Lieu of Meeting
4. Judicially Ordered Meetings
5. Who May Call a Meeting of Shareholders
6. Shareholder Proposals
a. Nature of Shareholder Proposals
b. Types of Proposals
c. Effect of a Shareholder Proposal
7. The Shareholder's Right of Discussion at Meetings of Shareholders
a. The Right of Discussion
b. Right of Discussion Not Unlimited
8. Conduct of the Chairperson at a Meeting of Shareholders
9. Shareholder Voting Rights
a. Types of Shareholder Resolutions
b. Circumstances in Which Shareholders Vote
c. Shareholders Entitled to Vote
d. 'Majority of the Minority' Voting Entitlements
e. Permitted Limitations on the Right to Vote
f. 'Coattails' Attached to Non-voting Shares
g. Cumulative Voting
10. The Proxy Voting System
a. Generally
b. Right to Appoint a Proxy
c. Mandatory Solicitation of Proxies
d. The Dissident Circular Requirement
e. Securities Regulatory Requirements and Proxy Circular Contents
f. Meaning of 'Solicitation'
g. Reimbursement for Proxy Solicitation Expenditures
B. Majority Rule: Legal and Statutory Protection of Minority and Majority Shareholders
1. The Statutory Derivative Action
a. Historical Background and Inspiration for the Statutory Derivative Action
b. The Statutory Provision
c. Standing to Bring a Derivative Action
d. The Leave Requirement
e. Interpretation of the Conditions for Leave
f. Powers of Court in Connection with a Derivative Action
g. Costs
h. Effect of Shareholder Ratification
i. Court Approval Needed to Discontinue a Derivative Action
j. Utility of the Derivative Action
k. Derivative Versus Personal Actions: Who Suffers the Harm?
l. Overlap Between Derivative and Personal Actions
2. The Oppression Remedy
a. Background
b. Standing
c. Grounds for a Court Order in Relation to Oppression
d. The Meaning of 'Oppressive or Unfairly Prejudicial to or That Unfairly Disregards the Interests Of'
e. Overlap with the Fiduciary Duties of Directors and Officers
f. Overlap with the Statutory Derivative Action
g. Use of Oppression Provision to Create a De Facto Controlling Shareholder Fiduciary Duty or Duty of Fairness
h. Application of the Oppression Remedy to Public Companies
i. Powers of Court in Connection with an Oppression Application
j. Buyout Orders
k. The Procedure
l. Costs
m. Court Approval Needed to Discontinue a Derivative Action
3. Duty of Majority Shareholders to Minority Shareholders
a. No Common Law Fiduciary Duties of Majority Shareholders to Minority Shareholders
b. Duty of Majority Shareholders to Minority Shareholders under the Oppression Remedy
4. Appraisal Rights
a. Purpose of Appraisal Rights
b. When Appraisal Rights Arise
c. Procedures for Appraisal in the Context of Fundamental Changes
d. Procedures in Connection with Compulsory Acquisitions
e. Procedures in Connection with a Reverse Compulsory Acquisition
f. Appraisal of Fair Value in the Context of an Oppression Application
g. Determination of a 'Fair Value'
h. Costs
C. Annual Account and Report
Profits and Dividends
1. Disclosure Requirements
a. Financial Disclosure
b. Management Discussion and Analysis
c. Material Change Reports
d. Prospectus Disclosure and Annual Information Form for Reporting Issuers
e. Corporate Governance Disclosure
f. Proxy Circulars
g. Business Acquisition Reports Required for Reporting Issuers
h. Insider Trading Reports
i. Information to which Shareholders, Creditors and Potentially Others Have Access
j. Register of Individuals with Significant Control
2. Profits and Dividends
a. Claims of Debt Holders as a Prior Claim on Revenues Before Profits
b. Dividends Paid out of Profits
c. Entitlement of Shareholders to Receive Any Declared Dividend
d. Priorities to Receive Dividends
e. Fixed Claim or Participation Rights
f. Cumulative or Non-cumulative Rights to Dividends
g. The Directors' Discretion to Pay Dividends
h. Setting a Record Date for Determining Entitlement to Dividends
i. Declared Dividends Are a Debt of the Corporation
II. Administration or Management Body
A. Directors and the Administrative Body (Appointment Requirements, Remuneration, and Dismissal)
1. Appointment of Directors
2. Director's Term of Office
3. Director Qualifications
4. Number of Directors
5. Director Remuneration
6. Ceasing to Hold Office as a Director
7. Removal of Directors
B. Powers of Management and Representation
1. Management Powers and Other Powers of the Directors
2. Officers: Appointment, Delegation of Powers, Remuneration and Removal of Officers
3. Delegation of the Powers of the Directors
4. Procedure for the Exercise of the Powers of the Directors
5. Representation: The Application of Principles of Agency Law
6. Corporate Governance Disclosure and Guidelines
C. Duties and Liabilities of Directors and Officers to the Corporation, Shareholders, and Third Parties
1. Common Law Duties of Directors and Officers and Statutory Codification
2. The Statutory Duty of Loyalty
a. The Duty to Act in the Best Interests of the Corporation
b. Duty of Loyalty in Relation to Conflicts of Interest
c. Duty of Loyalty in Relation to Conflicts of Interest and the Taking of Corporate Opportunities
3. The Duty to Act for a Proper Purpose (and its Relation to the Duty of Loyalty)
4. The Duty of Care
5. Other Statutory Obligations and Potential Statutory Liabilities for Directors
6. Indemnification and Insurance
7. Ratification of Breaches of the Duties of Loyalty or Care and of the Statute of Incorporation
8. Liability of Directors or Officers to Third Parties
III. Auditor (and the Audit Committee)
A. Appointment
B. Qualification
C. Remuneration
D. Auditor Ceasing to Hold Office due to Death, Resignation or Removal
E. Auditor's Powers and Duties
F. The Audit Committee
G. Auditor Oversight
H. Financial Statement Certification
IV. Worker Participation (in Two-Tier Board or in Auditor Appointment)
§6. LIQUIDATION OF THE CORPORATION
I. Grounds for Liquidation and Dissolution (Winding Up)
A. Generally
1. Terminology: Winding Up, Liquidation, and Dissolution
2. Corporate Legislation on Dissolution Applies to Solvent Corporations, not Insolvent Corporations
B. Voluntary Dissolution, or Voluntary Liquidation and Dissolution
1. By the Corporation's Directors
2. By the Shareholders
C. Involuntary Dissolution, or Involuntary Liquidation and Dissolution
1. By the CBCA Director
2. By the Court
a. Failure to Comply with Specified CBCA Requirements or Procurement of a CBCA Certificate by Misrepresentation
b. Other Grounds for Court-Ordered Liquidation and Dissolution: Oppression, Unanimous Shareholder Agreement, or Just and Equitable
II. The Effect of Liquidation and Dissolution
§7. MERGERS AND TAKEOVERS
I. Introduction: Business Combinations
II. Amalgamations ('Mergers')
A. Process
B. Effect
C. Appraisal Rights and Oppression Remedy
D. Short-Form Amalgamations
E. Cross-Border or Inter-jurisdictional Amalgamations
F. Arrangements
III. Sale of Assets
IV. Takeover Bids
A. Takeover Bid Requirements
1. Disclosure
2. Minimum Bid Period, Minimum Tender, Pro Rata Take-Up, and Withdrawal Rights
3. Equal Treatment
4. Formal Valuation
5. Adequate Financing and the Taking Up of and Payment for Shares
6. Purchases and Sales of Shares During the Bid Period
B. When the Takeover Bid Requirements Apply
C. Exemptions from the Takeover Bid Requirements
1. The Former Stock Exchange Exemption
2. 'Normal Course' Purchase Exemption
3. 'Control Block' or 'Private Agreement' Exemption
4. Closely-Held Corporation Exemption
5. Limited Effect / De Minimus Exemption
6. Foreign Takeover Bid Exemption
7. Securities Commission Discretionary Exemption
D. Anti-avoidance Provisions
E. Early Warning Disclosure
F. Enforcement
G. Post-takeover Force Out
V. Constraints on Mergers and Takeovers
A. Competition Act
B. Foreign Investment Reviews and Restrictions
1. The Investment Canada Act
2. Other Legislative Constraints
§8. HOLDING CORPORATIONS AND SUBSIDIARIES
I. Approach to the Regulation of Holding Corporations and Subsidiaries
II. Definitions
III. Restrictions and Other Provisions
A. Holding and Voting of Holding Corporation Shares
B. Number of Canadian Resident Directors
C. Financial Disclosure
D. Investigations
E. Insider Trading
F. Short-Form Amalgamations
G. Affiliates, Fiduciary Duties, and Derivative Actions
H. Affiliates and the Oppression Remedy
§9. THE TAXATION OF CORPORATIONS AND SHAREHOLDERS
I. Corporate Income Taxation
A. Introduction
B. Types of Corporations as Defined in the Income Tax Act
1. Resident Versus Non-resident Corporations
2. Public Versus Private Corporations
3. Canadian-Controlled Private Corporations
C. Computation of Income Tax Liability
1. The Basic Structure
2. Income from Business Versus Income from Property
3. Foreign Accrual Property Income
4. Dividends from Canadian Resident Corporations
5. Dividends from Non-resident Corporations
6. Capital Gains
D. Income Tax Rates
1. Federal Rates
2. Provincial Rates
II. Corporate and Personal Income Tax Integration
A. The Concept of Tax Neutrality and the Integration of Corporate and Personal Income Taxes
B. Tax Credit on Dividends Paid to Individual Taxpayers
C. Refund of Corporate Income Tax
III. Taxation of Corporate Reorganizations
IV. Other Taxes Corporations May Be Subject to in Canada
Chapter 2. Closed Corporation - Private Company - Limited Liability Company
§1. WHAT MAKES THIS TYPE OF CORPORATION DIFFERENT? (E.G., THE CONTENT OF THE ARTICLES, THE FORM CHOSEN)
I. General Characteristics of Closely-Held, as Opposed to Widely-Held, Corporations
II. The Statutory Approach to Identifying Closely-Held Corporations in the CBCA
III. No Specific Differences in the Form Chosen or the Content of the Articles
§2. IN WHAT RESPECT IS THERE A DIFFERENT LEGAL TREATMENT OF THIS CORPORATION? (E.G., TYPE OF SHARES, LIMITED TRANSFERABILITY, LIMITED NUMBER OF SHAREHOLDERS, TAXATION)
I. Benefit to Corporations Generally from Reduced Formalities on Incorporation Also Benefits Closely-Held Corporations
II. Specific Provisions from Which Closely-Held Corporations Are Most Likely to Benefit
A. Waiver of Notice to Meetings
B. One Shareholder Meetings
C. Unanimous Consent in Writing to Resolutions in Lieu of Meetings of Shareholders or Directors
D. Filing of Financial Statements
E. Dispensing with an Auditor and an Audit Committee
F. Avoidance of Management Proxy Solicitation and Proxy Circular Requirement
G. Modifying the Management Powers of Directors
1. Shareholder Agreements Generally
2. Unanimous Shareholder Agreements to Reallocate the Management Powers of Directors
III. Other Aspects of Closely-Held Corporations
A. Statutory Remedies
1. Leave to Bring a Derivative Action
2. The Oppression Application
3. The Appraisal Remedy
B. Types of Shares
C. Limited Transferability
D. Limited Number of Shareholders?
IV. Taxation of a Closely-Held Corporation
Part II. Partnerships
Chapter 1. Types of Canadian Partnerships and Their Nature
Chapter 2. General Partnership
§1. TO WHAT EXTENT DOES THIS TYPE ENJOY LEGAL PERSONALITY?
§2. NATURE OF THE UNLIMITED LIABILITY
§3. CONTRIBUTIONS AND DIVISION OF PROFITS
I. Contributions
II. Division of Profits
III. Partnership Property
§4. MANAGEMENT
§5. TRANSFERABILITY OF PARTNERSHIP INTERESTS
§6. LIQUIDATION
§7. TAXATION (IN BRIEF)
Chapter 3. Limited Partnership
§1. TO WHAT EXTENT DOES THIS TYPE ENJOY LEGAL PERSONALITY?
§2. NATURE OF THE UNLIMITED LIABILITY
§3. CONTRIBUTIONS AND DIVISION OF PROFITS
§4. MANAGEMENT
§5. TRANSFERABILITY OF PARTNERSHIP INTERESTS
§6. LIQUIDATION
§7. TAXATION OF LIMITED PARTNERSHIPS
Chapter 4. Limited Liability Partnership
§1. TO WHAT EXTENT DOES THIS TYPE ENJOY LEGAL PERSONALITY?
§2. NATURE OF THE UNLIMITED LIABILITY
§3. OTHER ASPECTS OF LIMITED LIABILITY PARTNERSHIPS: CONTRIBUTIONS AND DIVISION OF PROFITS, MANAGEMENT, TRANSFERABILITY OF PARTNERSHIP INTERESTS, AND LIQUIDATION
§4. TAXATION OF LIMITED LIABILITY PARTNERSHIP
Selected Bibliography
Index
Back Cover

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