In this blog, I’m going to discuss the requirements of continuing a dentistry professional corporation in Ontario from Alberta (just to use an example).
Overview
Here’s the situation: you’re an Alberta dentist with a professional corporation in Alberta. You now want to relocate to Ontario and want to simply continue your professional corporation here as well. How do you do it? And what steps are involved?
Section 180 of Ontario’s Business Corporations Act, R.S.O. 1990, c B.16 deals with this concept of “continuance” of a corporation in Ontario. The basic idea is that you’re going to convert your Alberta corporation into an Ontario one and then apply for a Certificate of Authorization from the RCDSO afterwards using your newly continued corporation. Section 180 says that an Alberta corporation may apply to the Ontario government for a “certificate of continuance” so long as Alberta laws permit it to do so. Well, turning to section 189 of Alberta’s Business Corporations Act, R.S.A. 2000, c. B-9, we see that a corporation may continue in Ontario so long as it is authorized by the shareholders and the Registrar approves the proposed continuance on being satisfied that the continuance will not adversely affect creditors or shareholders of the corporation. When these things are done and the Alberta government receives notice, it will file the notice and issue a certificate of discontinuance.
Steps
First, you’re going to need to prepare and file a Form 6 Continuance Application with the Ministry of Government Services – Companies and Personal Property Security Branch. The purpose of this Application is to tell the Ontario government that you want to transfer the jurisdiction from somewhere other than Ontario to Ontario.
The Application requires that you submit:
- The Articles of Continuance, completed in duplicate, bearing original signatures on both copies;
- A copy of the incorporating document, together with all amendments made, certified by the appropriate official of the incorporating jurisdiction;
- A letter of satisfaction, certificate of discontinuance or other document issued by the appropriate officer of the incorporating jurisdiction that indicates that the corporation is authorized under the laws of that jurisdiction to apply for Articles of Continuance;
- A legal opinion to the effect that the laws of the jurisdiction to which the corporation is subject, authorize the corporation to apply for continuance, if the corporation is incorporated outside of Canada;
- A NUANS name search report (not required if continuing as a number company);
- A fee of $330 (standard service 48 hours or 2-4 weeks by mail) or
$500 (expedited service 24 hours if delivered in person); and - A covering letter giving a contact name, return address and telephone number (this is typically the lawyer’s contact info).
Now, once these things have been submitted, it will take anywhere from 24 hours (if dropped off in person) to 2-4 weeks (if mailed) to process the Articles of Continuance.
Amending the Articles
After the Articles of Continuance have been filed and accepted, the next step may involve filing Articles of Amendment. This will be needed if the articles of incorporation do not comply with various Ontario rules and regulations concerning dentistry professional corporation. For example, the name of the corporation may not follow appropriate naming rules under the Certificate of Authorization Regulations. Also, the restrictions on the business may not be correct. Finally, the share structure of the corporation may be all wrong. As such, it’s important to have a lawyer familiar with these regulations review your documentation to see whether articles of amendment are required. If they are required, then you’ll need to file some MORE paperwork with the Ontario Ministry of Government Services:
- Articles of Amendment completed in duplicate, bearing original signatures on both copies;
- Ontario-biased NUANS name search report if there is a change of name (not required if the new name is a number name);
- A fee of $150.00; and
- A covering letter giving a contact name, return address and telephone number (again, this will likely be your lawyer’s contact information).
Certificate of Authorization
Once the Articles of Continuance and Articles of Incorporation have been duly filed and accepted, you can then proceed to apply for a Certificate of Authorization from the Royal College of Dental Surgeons of Ontario.
Tax Implications of Continuance
Also worth mentioning are the tax implications of continuing a corporation from Alberta to Ontario. Where an Alberta corporation continues under the laws of Ontario, there are NO provisions in the Income Tax Act expressly dealing with the tax consequences to shareholders or the corporation itself. Basically, the laws of Alberta and Ontario provide that the continuing corporation continues to hold is property, remains liable for its liabilities, and that there are no effects on its shareholders. So the Canada Revenue Agency has said that continuation does not result in the disposition (i.e. sale, transfer, gifting, assignment, etc.) by the Alberta corporation of its assets or a disposition of the shares by the shareholders and that the continued corporation would be viewed as having been incorporated under the new jurisdiction on the date of continuance.
