Policy on 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 legislation.

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. Consider consulting a lawyer or other professional to ensure that the particular needs of your corporation are met.

Table of contents

A continuance (export) and its effective date

A continuance or export transaction allows a NFP Act corporation to be governed by legislation other than the NFP Act. The corporation continues to exist under a different legislation (referred to as the importing legislation). As a result, the corporation is no longer governed by the NFP Act, which becomes the exporting legislation.

An export transaction may also be carried out as part of a bigger corporate transaction, such as 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 is no longer governed by the NFP Act. Instead, it is governed by the importing legislation as if it had been incorporated under that legislation.

Continuing (export) a corporation into a non-federal jurisdiction (province, territory or another country)

Step 1 – Obtain members approval of the continuance

Members must approve the continuance by a special resolution.

Each membership in the corporation – whether or not it has voting rights – has the right to vote on a continuance. The continuance must be passed by at least two-thirds of the votes cast at a meeting of members, in other words, passed by special resolution.

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

  • a description of any major differences between the protections available to members under the NFP Act and under the importing legislation (for example, the availability of the oppression remedy)
  • a description of any possible transaction 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
  • a mention that the continuance must be approved by a special resolution of members
  • any other material considerations.

When the continuance has been approved by members, the corporation can apply to Corporations Canada for a Letter of Satisfaction.

Step 2 – Apply for a Letter of Satisfaction

Generally, the organization (for example, a provincial registrar) that administers the importing legislation requires that the corporation provide a document stating that Corporations Canada is satisfied with the continuance. This is called a Letter of Satisfaction.

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 also indicates both the jurisdiction into which the corporation will continue and the name of the importing legislation. The Letter of Satisfaction is valid for 90 days from its date of issuance.

What Corporations Canada is looking for in an application for a Letter of Satisfaction

Corporations Canada reviews the application to ensure that:

  • the corporation wishing to continue is in good standing under the NFP Act (for example, the corporation is up to date with filings of annual returns and is not the subject of a current investigation for non-compliance)
  • the importing legislation permits the continuance of a NFP corporation, and
  • the continuance will not adversely affect any of the corporation's members or creditors.

Requirements to obtain a Letter of Satisfaction

Corporations Canada has pre-approved some importing legislation (see Continuance (export) – Legislation pre‑approved by Corporations Canada under the Canada Not-for-profit Corporations Act) to make it easier to obtain a Letter of Satisfaction. When the legislation has been pre-approved, the corporation does not need to provide to Corporations Canada information regarding the importing legislation.

You must file this application by sending a written request to Corporations Canada (see How do I file my application under the Canada Not-for-profit Corporations Act (NFP Act))

What to include in an application when the legislation has been pre-approved by Corporations Canada

In an application for a pre-approved importing legislation (see Continuance (export) – Legislation pre‑approved by Corporations Canada under the Canada Not-for-profit Corporations Act), include the following:

  • 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
  • the name of the jurisdiction (province, state or country responsible for the importing legislation, for example, Manitoba)
  • the title of the importing legislation (for example, The Corporations Act)
  • the filing fee (see Services, fees and turnaround times – NFP Act).

Caution

It is important that you provide the full name of the jurisdiction responsible for the importing legislation as well as the proper title of the importing legislation since they will both appear on the Letter of Satisfaction.  If the name and title provided are not accurate or complete, you may have to apply for another Letter of Satisfaction and pay the filing fees.

What to include in an application when the legislation has not been pre-approved by Corporations Canada

In an application for an importing legislation that has not been pre-approved by Corporations Canada, include the following:

  • 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
  • the name of the jurisdiction (province, state or country responsible for the importing legislation, for example, California)
  • the name of the importing legislation (for example, California Corporations Code)
  • an extract of the relevant provisions of the importing legislation
  • a statement of a director or an authorized officer of the corporation stating that:
    • members have been given full disclosure of the effect of export on their rights and interests, and
    • the continuance will not adversely affect members or creditors of the corporation.
  • a signed legal opinion by counsel qualified to practice in the jurisdiction responsible for the importing legislation. The opinion must state that the importing legislation
    • allows the continuance of a NFP corporation
    • provides for the rights listed in subsection 213(10) of the NFP Act.
  • the filing fee (see Services, fees and turnaround times – NFP Act).

Caution

It is important that you provide the full name of the jurisdiction responsible for the importing legislation as well as the proper title of the importing legislation since they will both appear on the Letter of Satisfaction. If the name and title provided are not accurate or complete, you may have to apply for another Letter of Satisfaction and pay the filing fees.

Step 3 – Send the Letter of Satisfaction to the organization that administers the importing legislation

The corporation must send the Letter of Satisfaction to the organization (for example, a provincial registrar) that administers the importing legislation.

If the organization approves the application for continuance, it will issue a document (for example, 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 – Send the document issued by the organization that administers the importing legislation to Corporations Canada

The corporation must send by mail or email (in PDF format) the document issued by the organization that administers the importing legislation (for example, a Certificate of Continuance) to Corporations Canada. Upon receipt of the 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 organization that administers the importing legislation. The corporation will then be no longer governed by the NFP Act, and
  • a notice of issuance of a Certificate of Discontinuance will be published in Monthly transactions.

Caution

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

Continuing (export) a corporation into another federal legislation

To continue (export) your not-for-profit corporation under the Canada Cooperatives Act, see Continuance of a not-for-profit corporation under the Canada Cooperatives Act.

To continue (export) your not-for-profit corporation under the Bank Act, the Insurance Companies Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act, see Continuance (export) of a not-for-profit corporation under the Bank Act, the Insurance Companies Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act.

Complaints and appeals - Export transactions

Anyone wishing to register a complaint with Corporations Canada asking for intervention in an export transaction, see Complaints and appeals - Export transactions.

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