You would be surprised at how often a minute book will be requested for review. Not every organization that wishes to see it has a right to see it but you may not be able to move forward with your company’s work if you cannot show them the proof they demand. Below are some reasons why a company needs a minute book.
Some Reasons Why a Company Needs a Minute Book
An investor’s solicitor may wish to review the minute book to assure his client that he is investing in a valid and subsisting company and may wish to ensure the documentation required to bring the investor in is documented
A bank may request to see the book to confirm the structure before agreeing to loan money to the company and the bank may wish to see the by-laws in order to determine what authority the directors and officers have to borrow money
If you wish to sell the company you will definitely be required to show that you have documented all transactions from the date of incorporation to the point of sale
Transferring the business from yourself to your family cannot be done unless the minute book is in order since ownership must be able to be approved by the family member. If there is no minute book, there is no evidence of ownership
Real estate transactions frequently result in ownership needing to be proved and without a complete minute book this cannot be done
Government offices such as the Workers Compensation Board may request your minute book to prove the percentage of ownership. If you cannot provide proof of the percentage of ownership between you and your spouse, then you may pay more tax
When the company purchases a vehicle the government office may request to see the minute book before agreeing to put the vehicle in the name of the company
If the company is audited by the government it will be requested to present its minute book
Cases are coming up where strangers are taking over existing small private well established companies. The stranger changes the names of the directors and officers on the public record to the new person. They then gain access to tax records by providing Revenue Canada with the notice of change. Once they take over the business, they open up an office using your company’s name. Ownership is evidenced in the minute book by the preparing of resolutions to allot shares, appoint directors and officers. If you do not have a minute book proving ownership will be more difficult. Your good name and goodwill could be destroyed during the time you are fighting to get your company back.
Why a Company Needs a Minute Book – Annual Returns, Initial Returns, Notices of Change
Certain returns and filings have to be done with respect to a new incorporation, on an annual basis and when changes have occurred in addresses, directors and officers. By law these must be documented and filed with the government. The professional who sets up your company knows what these are, will file them upon incorporation as required and let you know what will need to be done in the future. If these filings and returns are not maintained properly your company may be dissolved for non-compliance of the laws.
Why a Company Needs a Minute Book – Extra Costs Will be Incurred
There are many reasons why a minute book may be requested. As you can also imagine time is usually of the essence when a minute book is requested for review and that again can increase the cost of having one set up and documented. As well, if the company has been around for many years that can increase the cost of creating a new minute book.
Setting up your minute book and maintaining it as you go along will save you money and aggravation in the long run.
If you and a business associate start a company together and down the road there are problems, if there is no minute book set up and if approvals at meetings have not been documented properly, that person may be able to leave the company with more assets than he brought in because you will not be able to prove otherwise. Shareholders agreements are frequently prepared in addition to the set up of the minute book to ensure all parties are protected.
Lawsuits are in the courts every day over problems that occur amongst shareholders of companies. To protect yourself you should have a minute book set up which clearly shows ownership and it is prudent to also have a shareholders agreement prepared by a competent solicitor.
Resources for Canadian Business Owners has over 30 years’ experience in setting up, maintaining and rectifying the most complex of corporate minute books.
Which Provinces Accept a NUANS report versus a Specific Province Name Clearance Report?
The province and territories which accept the NUANS report are: Alberta, Ontario, New Brunswick, Federal, Nova Scotia, Prince Edward Island and Yukon. All other jurisdictions in Canada will require a name search report specific to that province or territory.
In Alberta and Ontario you are not required to provide a name search report of any type for sole proprietorships, business names or partnerships, however, it is still advisable to perform a preliminary name search since the onus is on you to ensure the name has not been taken by any other business. If you are ordering a name search report or a name search specific to a province as required by the type of registration you are wanting, our service automatically includes preliminary name searches. The only time you would order a preliminary name search would be if you are registering a business name, sole proprietorship or partnership in a province that does not require a name search report such as Alberta or Ontario.
Name search reports and NUANS name search reports all provide the same kind of information. They determine whether a proposed name has been used by any other business across Canada and also provide a list of similar names already registered. Be advised that these reports are specific to the province they are ordered for. For instance a Federal NUANS report cannot be used for an Ontario company.
A name search report compares the name of a proposed business to all other names already registered across Canada.
A NUANS report is specific to certain provinces and is a seven-page report which is generated from the search system which compares a proposed name or trade-mark with the database of existing names that have been registered anywhere across Canada.
What Information is Provided by a Name Search Report or a NUANS Report
By comparing the proposed name against the NUANS name search system or a name granting system in a province or territory, any similarity existing between the proposed name and the names in the database, will show up on the name search report. This will allow you to determine whether you are planning on using a name for your company that is too similar to another name. It is important for your name to be as distinct as possible. If you are ordering a name search for a province that does not accept the NUANS you will be provided with a name search that compares names to other names in that particular province or territory but the name search report will also look at similar names in other provinces right across Canada that may be a conflict.
What is A NUANS Search System
The NUANS search system is a computerized search system which contains a list of all of the company names, sole proprietorships, partnerships, business names and trade-marks registered in the federal, provincial and territorial jurisdictions in Canada. The purpose of the system is to keep track of all names registered across Canada.
Even if a province or territory has its own name search system in place, the NUANS system will pick up those names in its database and therefore when performing a preliminary name search the search system is the best way to get a pre-clearance of your name.
Only search houses can perform preliminary name searches or full NUANS name searches through the NUANS system with the exception of the federal government’s site which provides limited access to doing searches.
The federal website’s preliminary name search system is limited in that it does not allow for broad searches and it is not workable if ordering a Federal NUANS and it is limited with respect to doing preliminary name searches for other provinces and territories. In order to effectively do a preliminary name search on your proposed business you must have an experienced search house perform the search.
What is a Name Search Report and NUANS Report Used For
A NUANS name search report must accompany articles of incorporation when incorporating a company in the federal, Alberta, Ontario, New Brunswick, Prince Edward Island and Yukon jurisdictions of Canada.
NUANS reports are also required in some provinces for registration of business names and partnerships. In Ontario and Alberta you are not required to provide any form of name search when registering a sole proprietorship or partnership.
Do All Provinces and Territories Accept the NUANS Name Search
Some provinces and territories have their own name search system and they do not except the NUANS name search report. Those provinces and territories will require a name search specific to that jurisdiction. The jurisdictions in Canada that do not accept the NUANS report are British Columbia, Manitoba, Saskatchewan, Nunavut and Northwest Territories.
If you are registering a sole proprietorship, business name or partnership in a province or territory where a name search or NUANS report is not required (such as Ontario or Alberta), it is a good idea to perform a preliminary name search to ensure the name is available but a full name search report or NUANS report would not be necessary. All you need to do is ensure the name is available before you register your sole proprietorship or partnership.
Even though not all provinces and territories accept a NUANS report since all names registered in those jurisdictions are recorded in the NUANS database, it is still advisable to do a preliminary name search through the NUANS system to ensure the name is available. Resources for Canadian Business Owners can provide you with a preliminary name search for situations for situations when a full NUANS report is not required.
If you require a name search report or NUANS name search report to register your company, business name, sole proprietorship or partnership, Resources for Canadian Business Resources Inc. will provide you with unlimited free preliminary name searches when a name search report or NUANS report is ordered through us.
How Does the NUANS Name Search System Capture the Names from the Other Name Search Systems in Canada
The governments which do not accept reports from the NUANS name search system provide a list of any names that have been registered in their province or territory to the NUANS name search system and these names are added to the NUANS system database on a regular basis.
Why is a Name Search or NUANS Report Necessary
You cannot incorporate a company with a name that is exactly the same as another name already registered. It does not matter whether you are registering a company in PEI and the duplicate name is in BC, you will not be able to register an exact name.
When you go to incorporate a company the government must first know if that name has been taken. In order for the government to ensure that the name is free to use it needs to see a NUANS name search report or similar name search report depending on the jurisdiction.
The report will show the government whether there is an exact name already registered for the proposed name you wish to use. The name search report is also your way of determining whether there are additional conflicts to your name. The onus will be on you to look over the entire report and make sure you are not proposing to use a name that is even close to another corporate name or trade-mark since the owner of the name could still have a claim against you if your name is too similar and his or her company name has had a large presence in the marketplace for many years. Order a NUANS name search now.
How Do You Ensure Your Proposed Business Name is Distinct
Refer to the section on name guidelines for more information on how to ensure you have picked a distinct and descriptive name for your company that will not be challenged by the government or another company.
Are There Different Types of NUANS Name Search Reports
Each jurisdiction that accepts the NUANS Name search report will have its own form of NUANS report. If you are incorporating an Ontario company you will be required to obtain an Ontario NUANS Name Search report. If you are incorporating a federal company you will be required to obtain a federal NUANS name search report. If you are incorporating an Alberta company you will be required to obtain an Alberta NUANS Name Search report. Despite the fact that each of these reports is different, all reports will search the NUANS database system for similar names right across Canada.
Why Are Federal Name searches different from Alberta Name Searches, Ontario NUANS, PEI and NB Name Searches
An Ontario company can be incorporated with any name which is different in any regard, even if it is only a few letters in the name. A federal company differs however because when the federal government reviews articles of incorporation together with a Canada NUANS it will not allow any name which is similar to another company in many regards. When you are submitting incorporation documents for a federal company ensure your name is as different as possible from any other company name being used in Canada. Be prepared that the government may also disallow your proposed name if it sounds the same as another existing company even if the spelling is substantially different. You should be prepared that your name might not be accepted. Each time you submit articles for review you will need to submit a new NUANS report. If the first name you pick is too close to others on record, then you will have to buy another federal NUANS and submit again. A qualified search house will be able to assist you with having a better chance of your NUANS report being accepted the first time. Resources for Canadian Business Owners has experience in having proposed names accepted even after they have been rejected. However, some times additional searches must be performed to rule out conflicting companies and there can be an additional cost here. It is possible to obtain an advance Name Decision report from Industry Canada before you submit your articles for filing. Resources for Canadian Business Owners will be glad to submit a request for a Name Decision for your federal incorporation. This will also include as many preliminary name searches as you require without further cost. We are experienced in reviewing preliminary name search results through the NUANS system to help increase your chances of being accepted the first time round when you are submitting articles of incorporation for companies in the federal jurisdiction.
Why Does It Matter if I use a Name Similar to a Name in Another Province
It may seem that if you are registering a company in Ontario and another company in the Northwest Territories has a similar name, that this should not be a problem. With technology as it is today, companies are conducting business across Canada, if not across the World. You will have no idea whether the company with the name that you are proposing may at some time in the future be conducting business in the very province you wish to register in and then there would be a conflict. Further, the Canadian government provides that any company that is registered in any province or territory in Canada can apply to be registered to carry on business in another province or territory. It is therefore very important that your proposed name is distinct and descriptive. This is called an extra-provincial registration.
Is a NUANS Report Required for a Business Name or Sole Proprietorship Registration
A NUANS Report is not required in Ontario and Alberta, and some other provinces when registering business names, sole proprietorships and partnerships. In Ontario and Alberta anyone can register the exact same business name or sole proprietorship as one registered already. However, it is advisable that you do a preliminary NUANS name search before you register to ensure no one else is using the name regardless. This is the one time when you should pay for a preliminary name search for your business name. There is no need to purchase a full NUANS report or other name search report for a business name, sole proprietorship or partnership being registered in Alberta and Ontario. All that is required is to do a preliminary name search just to ensure you are picking a name that is different. It is always advisable not to use a name that is too similar to another name since this would be a conflict for your business in the long run. Some business names such as “Bell Canada” have a high standing in the marketplace because of the number of years the name has been registered and the number of people who know the name.
You should be aware that there is no such thing as a Federal Business Name registration, Federal partnership registration or Federal Sole Proprietorship registration. Business names, partnerships and sole proprietorships are governed by the provincial and territorial jurisdictions in Canada.
What is a Preliminary NUAN Name Search
If you purchase a NUANS Name Search Report and the name you wish to use for your incorporation is on the report as registered for another company or business, you will not be allowed to incorporate with that name. It is therefore important that you do a preliminary NUANS name search first in order to ensure before hand that the name is free. Otherwise, if you do not first ensure a pre-check of the name is done and you order a full NUANS report or other form of name search report, your registration could be rejected if the name is too similar or the same as another name registered.
Please note however that preliminary NUANS Name Searches are not fool proof and there is always a chance a conflict will show up on the full NUANS Name Search or other name search report that did not come up during the Preliminary NUANS Name Search.
You can keep buying full NUANS Name Search reports but it will become costly. It is better that you check the name first with a Preliminary NUANS Name search. Resources for Canadian Business Owners provides FREE UNLIMITED preliminary name searches with the purchase of a NUANS or Name Search Report. We will make great efforts to pre-clear your name in advance so that the odds of your proposed name being rejected are reduced.
How do I Arrange to have a Preliminary Name Search
Resources for Canadian Business Owners Inc. will do as many preliminary Name Searches as you wish with the purchase of a full NUANS Name Search or other Name Search Report. If you are not required to submit a name search report with your registration Resources for Canadian Business Owners will be glad to perform a preliminary name search for you at a nominal fee. This service should only be used when a name search report is NOT required
How Long Does it Take to Get a Name Search or NUANS Report
If you are ordering a report from a province or territory that does not accept a NUANS report, it can take a few days to a week to obtain the report. If you are ordering a NUANS name search report, it takes from 40 minutes to three hours to obtain a NUANS Name Search Report. Once you order a NUANS report a confirmation email will be sent to you to let you know that we have received your request. Depending on the number of searches requested at that time it might take us 40 minutes or three hours. Be assured though you will receive the NUANS in the same day whether you order it at 6:00 a.m. in the morning or 10:00 p.m. at night. Frequently we have someone close to the computer for most of the day right up until late evening so feel free to contact us at any time of the day. We are open 7 days a week. We look forward to serving you.
How Long is a Name Search or NUANS Report in effect.
A NUANS name search report will be in effect for 90 days from the date of issue. If yuou do not use the report until after that time you will be required to order a new one and most other name search reports are also effective for a similar length period.
Name Searches for Non-Profit Corporations and Charities
We can provide you with information about registered companies, partnerships, sole proprietorships or operating trade names on the public record throughout Canada including extensive due diligence searching and reporting.
We also provide registration services for Canadian companies, sole proprietorships, partnerships and operating trade names in the provinces and territories of Canada.
Our staff has over 30 years’ experience in corporate law and we will be glad to answer your questions. We take pride in our work and will provide you with the best, fastest, accurate and reasonably priced service available.
Depending on the province or territory you wish to incorporate your non-profit corporation will depend on the type of name report that you get. There is no difference between a name search report for a not for profit corporation or charitable corporation and a share corporation. It is the province or territory that governs the report you get.
For instance, a name search report for a share company being incorporated in Ontario is the same report given to a non profit or charity corporation wishing to incorporate in Ontario, being an Ontario NUANS name search report.
NUANS Search Houses are trained on the best method of performing Preliminary NUANS Name Search reports in order to ensure that the most conflicts to your proposed names can be found prior to ordering a full NUANS Name Search Report.
If you incorporate a numbered company a NUANS name search report will not be required since the government will provide you with the next number in line. An example of a numbered Ontario company would be a corporation having a name such as 9999999 Ontario Inc.
A numbered federal company might be a corporation with a name called 9999999 Canada Inc. and an Alberta numbered company might be 2244444 Alberta Ltd. The numbers are given out consecutively. You cannot choose the number for your company.
A director is an individual who is elected by the shareholders (owners) of the company to assist with the management and supervision of the day to day affairs of the company. Frequently the directors of a company are also the owners of the company. Not just anyone can be a director of an Ontario company. In order to meet the qualifications for directors of Ontario companies reference must be made to the statute that governs Ontario companies.
How many directors can an Ontario Company Have
Ontario companies must have at least one director for private companies and at least three directors for public companies. There is no limit on the number of directors an Ontario company may have and if a private company wishes to have many directors it may do so.
Who can Qualify to Act as a Director of an Ontario Company
The following persons are disqualified from being directors of an Ontario company:
A person who is less than 18 years of age;
A person who has been found under the Substitute Decisions Act, 1992 (Ontario) or under the Mental Health Act (Ontario) to be incapable of managing property or who has been found to be incapable by a court of Canada or elsewhere;
A person who is not an individual; or
A person who has the status of bankrupt.
Director’s Consent to Act as a Director
A person cannot be appointed to be a director of an Ontario company unless that person has agreed to do so. The Act provides that after an individual is elected as a director they must consent in writing to the appointment within ten days. This written consent is inserted into the minute book for the Ontario company and maintained there for future reference.
Resident Canadian Requirement for Directors of Ontario Companies
There is a requirement for 25% of the directors of an Ontario company to be “resident Canadians”. For more information about this requirement refer to Resident Canadian Requirements for Directors of Ontario Companies.
All companies must have at least one officer. There are many officer positions and each of those positions comes with a standard set of duties and requirements, although duties can be varied. Below is a list of the most common officer positions and a description of what duties and requirements come with the position.
Officers are appointed by the directors of a corporation. There are many different officers titles and positions that can be held by individuals. The scope of this Articles is to explain the different positions and statute requirements relating to them.
For information about how to appoint, remove or resign an officer refer to appointing officers.
Officer Titles for Private Companies
A private company is a company which does not sell shares to the general public. It is a company that is owned privately by one or more individuals or corporations.
The following are the customary and standard officer titles used by private companies:
These officers titles are the most popular and are limited to just a few because private companies frequently only have a few principals. Frequently there will be one person who holds the position of sole director, officer and shareholder (owner). In this situation he or she will normally hold the positions of President and Secretary. In other cases there will be two people as principals of the company, one of which will hold the position of President and the other the position of Secretary.
The officers titles given to individuals in private companies do not always denote the functions they will handle. Sometimes these titles are given to individuals so each owner and director will also hold an officer position. For instance if there are two principals then one will be the President and the other will be the Secretary. If there are three individuals one may be the President, the other the Secretary and the third may be the Treasurer. In the case of a fourth individual, this person may be appointed to a Vice-President position.
Officers Titles in Public Companies
In public companies the officers titles can be very different. Frequently officers for public companies have more functions and duties and they may be supervising a department of a number of people. Some of the common titles for public companies are:
Chairman or Chairperson of the Board
Chief Executive Officer
Chief Financial Officer
How Many Officers Must a Company Have
All companies in all jurisdictions must have at least one officer. Normally if there is only one officer, the title that person will hold is President.
Officers Titles Can be Flexible
There is no set rule with respect to any title. A company can designate officer titles that it wishes, however, it is always good to have a President and a Secretary.
Can a Person Hold More Than One Officers Title
Yes. An individual can hold more than one officer position. However, some officer positions can only be held by one person. For instance, there is never more than one President, Chief Executive Officer, Chief Financial Officer, Secretary or Treasurer. There may be any number of Vice-Presidents and any number of Executive Vice-Presidents.
Board Appointed Officers versus Non-Board Appointed Officers
The board of directors of a company may appoint only a certain number of officer positions that are being held. For instance, three individuals may be owners of a company and all three of them have been appointed by the board of directors to hold those positions. A meeting was held to appoint them or a resolution of all of the directors was signed to appoint them. These individuals are called board appointed officers because of the manner in which they were appointed.
There may also be a General Manager or a Manager, Technology or a Manager, Office Supplies. These positions may not be officially appointed by the board yet they are officer positions. They would be considered non-appointed officer positions.
Public companies also may have non-appointed officers. The larger companies will have many departments operating different services and functions. They may appoint Vice-Presidents of those departments. There could be hundreds of Vice-Presidents appointed. The board of directors, in this case, would not appoint those Vice-Presidents.
Does an Officer Have to be a Director
In some cases there are certain officer positions which cannot be held by anyone unless that person is a director. For instance, a Chairman or Chair or Chairperson of the Board and a Managing Director (depending on what the governing statute says) must be a director to hold those positions.
Most governing corporate statutes are vague with respect to officers, however, the best way to determine whether an officer position must be held by a director is to check the statute. When a statute is silent on the issue there is no restriction.
As well, the by-laws of the corporation must also be reviewed. Some by-laws are set up to provide that certain officer positions must be held by a director and even though there may not be a statute requirement, if the by-law indicates this then the company must abide by those by-law provisions.
If a by-law provides that an officer position must be held by a director but the statute does not say it is mandatory, then the by-law can be amended. The statute will provide the method by which a by-law can be amended. For Ontario companies refer to Ontario By-laws Enactment, Amendment and Repeal.
All Ontario companies must have at least one director and this person must be a resident Canadian as defined in the Business Corporations Act (Ontario). Director(s) are the individuals who manage and supervise the business on behalf of the owners (shareholders). The directors will also appoint officers to assist.
The Business Corporations Act (Ontario) provides for a residency requirement for directors. 25% of the directors of an Ontario company must be “resident Canadians” as defined by the Act. This means that if an Ontario company has one to four directors, at least one of them must be a resident Canadian.
Definition of Resident Canadian
A resident Canadian is defined in the Act as an individual who is (a) a Canadian citizen ordinarily resident in Canada, (b) a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of persons, or (c) a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada) and ordinarily resident in Canada.
Meaning of the Definition of Resident Canadian
In lay terms, to be considered a “resident Canadian” pursuant to the Act, you must be a Canadian citizen living in Canada or a permanent resident living in Canada. Therefore, if you are a Canadian citizen not living in Canada you would not qualify to be the sole director of a company, however, you could be a director as long as there were other directors elected to the board meeting the 25% resident Canadian requirement. As well, a non-Canadian may not be the sole director of a company.
On the other hand, not all provinces and territories have the same rules. In British Columbia the Business Corporations Act (British Columbia) does not provide for a residency requirement. Therefore a non-Canadian or a Canadian citizen not living in Canada may be the sole director of a BC company. This is good news for those Canadians who wish to conduct business in Canada but also wish to live outside of Canada. As well, foreign individuals are able to set up BC companies and act as the sole director of those companies since there is no requirement for them to live in Canada. Refer to our blog page for more information about residency requirements for BC companies.
A resolution is a form of approval. It can be to approve any matter that the corporation wishes. Some examples are approval of the change of registered office address of a company, approval to amend the articles of a company, approval to enact by-laws of a company, etc.
Resolutions are Approved by Directors or Shareholders
In some cases, certain matters must be approved by the directors and in other cases it may be that shareholder approval is required. For instance if the company wishes to change its name from one alpha name to another alpha name the shareholders must approve this change before it can be implemented. If a company wishes to enter into an agreement, the directors would approve the matter. In some cases, both directors and shareholders may need to approve a resolution.
How Are Directors Resolutions and Shareholders Resolutions Approved
Resolutions can be approved at meetings of the directors or shareholders, pursuant to which every director/shareholder has been given notice of the meeting, and for which at least a quorum of those directors/shareholders showed up for the meeting. (i.e. the minimum number of directors/shareholders that can form a quorum is outlined in the company’s by-law and frequently is a majority).
Resolutions can also be approved without holding a meeting as long as all of the directors or shareholders, as the case may be, sign and approve a written resolution.
What Types of Resolutions are There
There are three types of resolutions:
Directors Resolution – This is a resolution that is either (a) passed by a quorum of directors at a meeting held to approve it, or (b) a resolution in writing signed by all of the directors.
Shareholders Resolution – This is a resolution that is either (a) passed by a quorum of shareholders at a meeting held to approve it, or (b) a resolution in writing signed by all of the shareholders entitled to vote.
Special Resolution – A special resolution means a resolution that is (a) submitted to a special meeting of the shareholders of a company duly called for the purpose of considering the resolution and passed by at least 2/3rds of the votes cast at the meeting, or (b) consented to in writing by each shareholder of the company entitled to vote.
What Does a Resolution Look Like
We have included an example of a resolution on this page. There is always a heading on the resolution and a footer which shows the signatures.
The Heading should say either (a) Resolution of the Directors, or (b) Resolution of the Shareholders, or (c) Special Resolution as the case may be.
The footer should reference that all of the directors or shareholders are signing and the name of the statute that they are relying upon.
How do You Know Whether the Directors or Shareholders Must Approve a Particular Matter
The Ontario Business Corporations Act is online and can be searched to find out what type of approval you need for a matter. For instance, let us say that you are changing the directors of a company by increasing the number. If you search “number of directors” you will find section 125(3) which indicates that the number of directors is determined by special resolution.
By-laws are the rules pursuant to which a corporation conducts business. Many of those rules will be the same as outlined in the statute governing the company. However, in some cases the statute may provide that the by-laws can override certain standard statute provisions. Ontario operating by-laws are the main rules for the corporation.
Ontario Operating By-law
The Ontario operating by-law is the first by-law to be enacted by a company upon incorporation and every company must have an operating by-law. The rules outlined in the operating by-law are with respect to the number of directors, directors’ duties and meeting requirements, the appointment of officers and the rules relating to shareholders including meeting requirements, how many shareholders must be in attendance for it to be a valid meeting, etc. These are just a few of the provisions outlined in a standard Ontario operating by-law.
“(1) Unless the articles, the by-laws or a unanimous shareholders agreement otherwise provide, the directors may, by resolution, make, amend or repeal any by-laws that regulate the business or affairs of a corporation.
(2) Where the directors make, amend or repeal a by-law under subsection (1), they shall submit the by-law amendment or repeal to the shareholders at the next meeting of shareholders, and the shareholders may confirm, reject or amend the by-law, amendment or repeal.
(3) Where a by-law is made, amended or repealed under subsection (1), the by-law, amendment or repeal is effective from the date of the resolution of the directors until it is confirmed, confirmed as amended or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed or confirmed as amended, it continues in effect in the form in which it was so confirmed.
(4) If a by-law or an amendment or repeal of a by-law is rejected by the shareholders, or if the directors do not submit the by-law, amendment or repeal to the shareholders as required under subsection (2), the by-law, amendment or repeal ceases to be effective on the date of such rejection or on the date of the meeting of shareholders at which it should have been submitted, as the case may be, and no subsequent resolution of the directors to make, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed or confirmed as amended by the shareholders.”
Amending or Repealing a By-Law
If the officers of an Ontario company wish to amend an Ontario operating by-law or another by-law, which has been approved by the directors and shareholders, the manner in which to approve the amendment to the by-law is to create a new by-law providing for the amendment. For instance the officers will create a new by-law no. 2 which repeals all or certain sections of operating by-law no. 1, and includes the new replacement sections to be approved. The officers would present by-law no. 2, being an amendment to by-law no. 1, to the directors for approval. If the directors approve the by-law then the directors shall present the by-law to the shareholders for approval at the very next meeting of the shareholders.
Approving a By-law
When the directors approve a by-law it is said that the by-law has been “enacted by the directors” and the shareholders of the company are said to have “confirmed the by-law”. All directors and shareholders of a corporation must have an opportunity to review the by-law and approve it for the by-law, amendment or repeal to be considered to be properly approved in accordance with the requirements under the Business Corporations Act (Ontario).
This article is about the requirement under the Business Names Act (Ontario) for a company to register under the Business Names Act when it operates under a name other than its corporate name – known as an Ontario operating trade name.
The statute indicates in section 2 that no corporation shall carry on business or identify itself to the public under a name other than its corporate name unless that name is registered by the corporation.
This legal requirement is frequently not followed correctly by small business corporations. Let us take the example of a person who incorporates a company called Trewell Landscaping Inc. He incorporates his company and wants to put a sign up on his door for the name “Trewell Landscaping”.
This is not the full name of the company and Trewell Landscaping Inc. is therefore operating under a name other than its corporate name and is in violation of the Business Names Act.
The owner of Trewell Landscaping thinks that because his corporate name and his business name are similar, that a registration is not required. However, by virtue of the owner putting up a sign on his door called Trewell Landscaping he is in violation of the legal requirements under the Business Names Act.
The owner of Trewell Landscaping Inc. has two options. He can register an operating trade name called “Trewell Landscaping” and obtain a Master Business License for this name. This would mean that Trewell Landscaping Inc. would then be legally operating under the trade name “Trewell Landscaping” and the above sign is completely correct and legal.
If he does not wish to incur any further expense he can include the word “Inc.” at the end of the name “Trewell Landscaping” in very small letters after the name on his sign.
Below is an example of the Master Business Licence that is issued by the Ontario Ministry of Government Services when a company registers a business name. This example illustrates how the name is registered without the “Inc.” in the name which allows the corporation to now operate under Trewell Landscaping.