Extra-provincial Registrations

Transcription

1 Corporate Commercial Section 3 Contents Definition...Corporate-3-1 Registration Requirements in Saskatchewan...Corporate-3-1 Federal Corporations...Corporate-3-2 Naming an Extra-provincial Corporation...Corporate-3-3 Application for Registration...Corporate-3-4 Certificate of Registration...Corporate-3-5 Attorney for Service of Extra-provincial Corporations...Corporate-3-6 Notices of Change...Corporate-3-6 Amendment to Articles...Corporate-3-7 Annual and Other Returns...Corporate-3-7 Validity of Acts...Corporate-3-8 Termination of Registration...Corporate-3-8 Precedents: Request for Name Availability Search and Reservation Form 27 (The Business Corporations Act)...Corporate-P-3-1 Application for Registration Form 22 (The Business Corporations Act)... Corporate-P-3-2 Power of Attorney Form 24 (The Business Corporation Act)...Corporation-P-3-4 No part of this material may be reproduced, in whole or in part (in any manner), without the specific written permission of Saskatchewan Legal Education Society Inc. (2008 SKLESI). Corporate 3 i

2 2008 SKLESI Corporate 3 ii

3 2008 SKLESI Definition Section 2(p) of The Business Corporations Act (Saskatchewan) (the "SBCA") defines an extra-provincial corporation as a body corporate incorporated otherwise than by or under an Act of the Saskatchewan Legislature and includes: a body corporate incorporated under an ordinance of the North West Territories, that is not by section 16 of The Saskatchewan Act subject to the legislative authority of Saskatchewan; and a Canada corporation. Registration Requirements in Saskatchewan In order for a corporation incorporated in another jurisdiction to do business in Saskatchewan, a separate incorporation in the province is not required. Instead, the corporation must register in Saskatchewan. Part II of the SBCA provides for the registration of extra-provincial corporations. Under section 262(1) of the SBCA, every extra-provincial corporation must be registered under Part II before commencing business in Saskatchewan. However, there are exceptions to this rule: a chartered bank or a railway corporation; an extra-provincial insurer licenced under The Saskatchewan Insurance Act; a corporation registered under The Co-operatives Act, 1996, The New Generation Co-operatives Act, or The Credit Union Act; an extra-provincial corporation registered under The Non-profit Corporations Act, 1995; and any corporation or class of corporation exempted by the regulations. Corporate 3 1

4 2008 SKLESI According to section 262 of the SBCA, an extra-provincial corporation is carrying on business in Saskatchewan when: it holds any title, estate or interest in land registered in the name of the corporation under The Land Titles Act, 2000; it has a resident, agent or representative or maintains an office, warehouse or place of business in Saskatchewan; it is licenced or registered or required to be licenced or registered under any statute of Saskatchewan entitling it to do business or to sell securities of its own issue; it otherwise carries on business in Saskatchewan; and where the number of a telephone located in Saskatchewan is listed in a telephone directory issued by Saskatchewan Telecommunications or in another prescribed telephone directory or prescribed category of telephone directory under the name of the corporation. If an extra-provincial corporation does any of the above activities, it must be registered in Saskatchewan. Where a corporation incorporated or continued pursuant to the SBCA is continued pursuant to the laws of another jurisdiction, the corporation is deemed to be registered as an extra-provincial corporation for a period of 60 days from the date of its continuance pursuant to the laws of that other jurisdiction. Unless the corporation submits to the Director complete Power of Attorney in Form 24 with the appropriate fee, the Directors shall upon the expiration of the 60 day period, strike the name of the corporation from the register. Federal Corporations To carry on business in Saskatchewan, a Canada corporation must be registered as an extra-provincial corporation in Saskatchewan. Corporate 3 2

5 2008 SKLESI Naming an Extra-provincial Corporation As a preliminary step to making an application for registration of an extra-provincial corporation in Saskatchewan, obtain a "NUANS" (Newly Upgraded Automated Name Search) search report from Saskatchewan Corporations Branch or a registered search house to determine whether the corporation's name is available in Saskatchewan. Industry Canada maintains a list of registered search houses on its website. Sections 293 and 294 of the SBCA and The Business Corporations Regulations contain a number of prohibitions relating to names of extra-provincial corporations. These closely follow the prohibitions in section 12 relating to naming new corporations. For instance, section 293 prohibits naming an extra-provincial corporation identical to an existing provincial corporation. However, under section 294.1, an extra-provincial corporation with a name that contravenes sections 293(a) or (b) or 294(c) can, with the Director s approval, be registered on the Saskatchewan Corporate Registry in its own name and carry on business in Saskatchewan under an alternate name, the use of which is approved by the Director and which does not contravene sections 293 and 294. Basically, this section allows a corporation from another jurisdiction to become registered in Saskatchewan without changing its name when the name of the extra-provincial corporation in its home jurisdiction is the same or similar to a Saskatchewan corporation. An extra-provincial corporation so registered must acquire any property and rights in Saskatchewan under its alternate name. The extra-provincial corporation is also entitled to all property and rights acquired under the alternate name as if it had been acquired under the name in which it is registered, but is also subject to all obligations and liabilities incurred under the alternate name. The extra-provincial corporation shall sue in the alternate name, however, it may be sued in the name in which it is registered, in its alternate name or in both names. Corporate 3 3

6 2008 SKLESI An extra-provincial corporation that takes an alternate name may cancel its alternate name and carry on business in Saskatchewan under the name in which it is registered if the corporation applies in the prescribed form and pays the prescribed fee and the Director approves. If through inadvertence or otherwise an extra-provincial corporation, other than a Canada corporation, is granted a name or an alternate name that is, in the opinion of the Director, for any reason objectionable, the Director may direct the corporation to change its name or alternate name within 90 days of the date of the direction. Application for Registration Extra-provincial registration under the SBCA is administered by the Ministry of Justice and Attorney General, Corporations Branch. The contact information for Saskatchewan Corporations Branch is as follows: Saskatchewan Justice, Corporations Branch 2 nd Floor, 1871 Smith Street Regina, SK S4P 4W5 Phone: (306) Facsimile: (306) corporationsjustice@gov.sk.ca Website: An application for extra-provincial registration can be submitted to Saskatchewan Corporations Branch by mail, fax, or in person, and the fee for registration is $265. The date of registration will be effective the date all properly completed forms and all fees are received. Registration may be effected by sending the Director: the Registration number from the NUANS report for the corporate name, which must be submitted within 90 days of the search being completed. (Note: Two NUANS reports are required where the corporation will carry on business under an alternate name - one for the name used in the home jurisdiction and one for the alternate name); Corporate 3 4

7 2008 SKLESI application for Registration (Form 22), in duplicate. If the corporation has been formed as a result of an amalgamation, a photocopy of the Certificate of Amalgamation or other documents setting out the names of the corporations being amalgamated must be attached as a supplement to the "Corporate History" of the corporation as set out in clause 4 of the Application for Registration; Certificate of Status (also called Certificate of Compliance or Good Standing in some jurisdictions) issued by the home jurisdiction. If the Certificate of Status does not state the date of incorporation in the home jurisdiction, a photocopy of the Certificate of Incorporation must be attached; and if necessary, a Power of Attorney (Form 24), in duplicate appointing a resident of Saskatchewan to act as Power of Attorney, in duplicate; Certificate of Registration If the materials submitted to Saskatchewan Corporations Branch are in order, the Director then issues a Certificate of Registration dated as of the day the materials and fees are received or as of any later date specified by the Court or the person who signs the Application for Registration. The corporation is registered in Saskatchewan the date shown in the Certificate of Registration issued by Saskatchewan Corporations Branch. A corporation, while registered, is entitled, and has the capacity, to carry on business in Saskatchewan subject to any other laws applicable to persons or corporations. Pursuant to section 266 of the SBCA, registration or renewal of a registration of a corporation shall be deemed to authorize all previous acts of the Corporations as if the corporation had been registered at the time of such acts, except for the purpose of a prosecution of an offence against the SBCA. Corporate 3 5

8 2008 SKLESI Attorney for Service of Extra-provincial Corporation Section 268 of the SBCA requires that the extra-provincial corporation appoint a Power of Attorney for service when submitting the Application for Registration. However, a Power of Attorney is not required where the extra-provincial corporation has a director or officer who is a Saskatchewan resident. The Power of Attorney must consent to so act and be available during regular business hours. The Power of Attorney accepts service in all proceedings by and against the corporation within the province and receives all notices or documents required or permitted by law to be sent to or served in Saskatchewan on the extra-provincial corporation. Service on the Power of Attorney is legally binding on the corporation. To change its Power of Attorney, a corporation must file a new Power of Attorney (Form 24). Section 268 of the SBCA requires the extra-provincial corporation to appoint a new Power of Attorney if the named Power of Attorney ceases to reside in Saskatchewan dies, resigns, or the appointment of the Power of Attorney becomes invalid or ineffectual for any reason. The new Power of Attorney (Form 24) must be filed with the Director within 15 days of the change. A resignation by a Power of Attorney is effective at the later of the time the written resignation is sent to the corporation or the time specified in the written resignation. A copy of the resignation shall be sent to the Director. Notices of Change Section 270 of the SBCA requires that an extra-provincial corporation shall send to the Director notice of any change in the address of its head office, whether within or outside of Saskatchewan, notice of change in the address of its Power of Attorney, and notice of change of its directors. Notice shall be sent in duplicate not later than 15 days after the change is made. Corporate 3 6

9 2008 SKLESI Amendment to Articles Under section 271 of the SBCA, an extra-provincial corporation shall send to the Director together with the prescribed fee, a copy of any amendment to its Articles that effects a change of its name, a continuance under the laws of another jurisdiction, or an amalgamation. The amendment must be filed within 30 days of the date of the amendment and, although there is no prescribed form for filing these amendments, should include a clear photocopy of the Certificates and Articles as issued by the home jurisdiction in the case of a change of name or continuance. To register an amalgamation, a clear photocopy of the Certificate and Articles of Amalgamation, a Power of Attorney form (Form 24), a list of directors (including their full names and addresses) and the registered office (which may be done in a covering letter) must be provided. If an extra-provincial corporation changes its name, the change of name does not affect any rights or obligations of the corporation, or render defective any legal proceedings by or against it, and proceedings that might have been continued or commenced by or against it under the former name may be continued or commenced by or against it under the new name. Annual and other Returns Section 273 of the SBCA requires an extra-provincial corporation to file an annual return. These are due one month after the month of incorporation in the home jurisdiction. Annual returns are computer generated for each extra-provincial corporation by Corporations Branch and sent to the address of the Power of Attorney. As a result, blank annual return forms are not available. An extra-provincial corporation is not required to provide a shareholder list with its annual return. Corporate 3 7

10 2008 SKLESI Validity of Acts Section 278 of the SBCA provides that no act of an extraprovincial corporation, including the holding of title to the land or of any interest in land, is invalid by reason only that the corporation was not registered under the SBCA. However, a corporation that is not registered under the SBCA is not capable of commencing or maintaining any action or other proceeding in a Court in respect of a contract made in whole or in part in Saskatchewan in the course of, or in connection with its business. Sections 276 and 277 permit actions to be commenced and resumed upon the corporation becoming registered. Termination of Registration An extra-provincial corporation that ceases to carry on business in Saskatchewan can send a notice to that effect to the Director. The registration of the extra-provincial corporation is terminated when such a notice is received, and the name of the extraprovincial corporation is struck of the register. However, the registration of the extra-provincial corporation may be renewed if its name is restored to the register in accordance with section 290 of the SBCA. The Director may also strike the name of an extra-provincial corporation off the register in a number of instances enumerated in section 290 of the SBCA, such as, not complying with the requirements of the SBCA. Corporate 3 8

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