Continuance (export) of a not-for-profit corporation

Learn how to prepare a request to continue (export) a corporation from the Canada Not-for-Profit Corporations Act (NFP Act) to another corporate statute.

Note:

Although the information provided here will assist you in completing the continuance process quickly and accurately, it is not intended to replace legal advice. You may wish to consult a lawyer or other professional advisor to ensure that the specific needs of your corporation are met.

Table of Contents

What is a continuance (export) and when does it come into effect?

An export transaction allows a corporation under the NFP Act to be governed by another legislation other than the NFP Act. It continues into, and is governed by, another legislation (referred to as the importing legislation). The NFP Act would be the exporting legislation. As a result, the corporation ceases to be governed by the NFP Act.

An export transaction may also be carried out as part of an amalgamation that results in a non-NFP Act corporation or an arrangement.

A continuance (export) comes into effect on the date shown on the Certificate of Discontinuance issued by Corporations Canada. As of that date, the corporation will no longer be governed by the NFP Act. Instead, it will be governed by the importing legislation, as if it had been incorporated in that jurisdiction.

What does Corporations Canada review in an application for continuance?

Corporations Canada reviews the application to ensure that:

  • the continuance will not adversely affect any of the corporation's members or creditors
  • members have been given adequate disclosure and have approved the export by a special resolution1
  • the importing legislation permits the continuance of a NFP Act corporation
  • the corporation wishing to continue is in good standing under the NFP Act (e.g., the corporation is up to date with filings of annual returns and financial statements, if applicable, and is not the subject of a current investigation for non-compliance).

What is the process to continue (export) a corporation into a non-federal jurisdiction (province, territory or another country)?

This involves four steps:

Step 1- Authorisation of the continuance by a special resolution of members

Each membership in the corporation – whether or not it otherwise has such rights – has the right to vote in respect of a continuance. A special resolution is a resolution that is passed by at least two-thirds of the votes cast at a meeting.

The meeting notice and disclosure materials sent to members must contain the following information:

  • a description of any major differences between the protections available to members under both the NFP Act (e.g., the availability of the oppression remedy), and the importing legislation
  • a description of any possible transaction – planned or unplanned – that may follow the export if such a transaction could have major consequences for the members. For example, once the export is completed, the corporation intends to complete another corporate transaction that would not be permissible under the NFP Act. This disclosure should indicate whether or not the proposed subsequent transaction is a major motivating influence for the export transaction, and whether or not a legal commitment has been made to conduct the proposed subsequent transaction after completion of the export transaction
  • the reasons for the export transaction
  • that the continuance must be approved by a special resolution of members
  • any other material considerations.

Step 2 - Application for a Letter of Satisfaction from Corporations Canada

The Letter of Satisfaction states that Corporations Canada is satisfied that the continuance will not be prejudicial to creditors or members of the corporation. The Letter of Satisfaction is valid for 90 days.

To obtain a Letter of Satisfaction, the corporation must send a written request to Corporations Canada, specifying:

  • the corporate name and corporation number
  • the name and telephone number of the applicant and details of where the Letter of Satisfaction should be sent
  • a statement of a director or an authorised officer of the corporation stating that:
    • members have been given full disclosure of the effect of export on their rights and interests
    • the continuance has been approved by a special resolution of the corporation's member
    • the continuance will not adversely affect members or creditors of the corporation.
  • the filing fee.

If the corporation is continuing under a legislation that has not been pre-approved by Corporations Canada, the following documents must also be filed:

  • a copy of the relevant provisions of the importing legislation under which the corporation will continue
  • a signed legal opinion by counsel qualified to practice in the jurisdiction under which the corporation will continue. The notice must state that the importing legislation:
    • allows the continuance of a NFP Act corporation
    • provides for the rights listed in subsection 213(10) of the NFP Act.

Step 3 - Sending the Letter of Satisfaction to an importing legislative authority

The corporation must send the Letter of Satisfaction to the legislative authority which administers the importing legislation.

If the legislative authority approves the application for continuance, it will issue a document (e.g., a Certificate of Continuance) stating that the corporation is duly continued under the importing legislation, as if it had been incorporated under it.

Step 4 - Sending the document issued by the legislative authority to Corporations Canada

The corporation must send the document issued by the legislative authority to Corporations Canada.

Upon receipt of this document, Corporations Canada will issue a Certificate of Discontinuance. The date indicated on the Certificate of Discontinuance will be the same as the date on the document issued by the legislative authority.

It is necessary for the corporation to obtain the Certificate of Discontinuance. Until Corporations Canada issues a Certificate of Discontinuance, the corporation will continue to be governed by the NFP Act, even though it is also governed by the importing legislation.

A notice of issuance of a Certificate of Discontinuance will be published in the Corporations Canada Monthly Transactions.

Continuance (export) of a corporation to a federal jurisdiction


Footnote

1. Notice of the meeting does not legally have to be given to other persons affected by the continuance (e.g., creditors). However, it is good corporate practice to advice persons other than members who would be affected by an export operation. If such a notice is appropriate, a news release may be adequate. (Return to text)

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