Canadian Small Business Women

Connection, Synergy, Community

Trademarks

It’s too early for me to worry about trademarks, right? 

If you are operating a business in Canada, or you are planning to in the near future, you should be thinking about trademarks. It’s very unfortunate that business owners are advised about business name registrations, HST numbers and the like, but not advised of the perils of not properly searching the availability of a proposed name and taking the steps to own it as a trademark.

Today’s blog was co-written by Cynthia Mason, a Lawyer and Trademark Agent with Mason PC in Ottawa, and the Founder of Markably, an on-line DIY way to register your own trademarks.

 

1) I am just starting out with my business. It’s too early for me to worry about trademarks, right?  

It’s never too early to be thinking about owning and protecting your trademarks. Your first thought about trademarks should really be when you select your business name. You want to ensure that you are selecting a name that is capable of functioning as a trademark, and by that we mean something that is not descriptive of your products and services and is not confusing with anyone else’s trademark. Once you are confident the name is available for your exclusive use, you should claim ownership of it with a trademark registration.

 

2) What is a trademark anyway?

A trademark can be anything that you use to set your products or services apart from everyone else’s. There are three main types of trademarks that most businesses, big or small, consistently use. They are (a) names, (b) logos and (c) taglines.

 

3) Why do I even need to worry about protecting my trademarks? That’s an issue for bigger businesses than mine. 

Trademarks are what the public uses to find your products and services in the marketplace. So regardless of the size of your business, you need to ensure that the public isn’t confused between your trademark and someone else. Trademark law is a great equalizer between businesses with different depths of resources. So long as you are the first business to use a trademark and you have registered it as your trademark, which is not expensive to do, you have the power to stop all others from causing confusion.

 

4) The mechanics: How do I go about registering a Trademark? 

To start the registration process, you file an application with the Canadian Intellectual Property Office (CIPO) and that application must contain the trademark, the applicant’s name and address, and a classified description of the goods and/or services that will be sold in connection with the trademark. Once filed, CIPO will examine the application for compliance with trademark laws and regulations, and if satisfied the application complies, they’ll approve it and advertise it for any public objections. If none are raised, the application is allowed and registered for a 10-year term, which can be renewed indefinitely.

The trademark registration process is somewhat lengthy in Canada, due to a delay in examination, and it will take about 2.5 to 3 years from filing the application to obtaining the final registration.

 

5) If I have more than one trademark, should I register them all at the same time?

Each trademark must be the subject of its own registration, and you should register all your trademarks. But if your budget is tight, your first priority should be to register the name that appears on your products or in advertising your services, as this is the main trademark that the public uses to distinguish your products and services from everyone else’s. You next priorities for registration should be your logo and any taglines or secondary product or service names.

 

6) If I register it, where is it good for?

Trademark registrations are country specific. So, if you only register your trademarks in Canada, you only own them in Canada. That registration does not grant you rights in any other countries. You should register your trademarks in every country where you are actively marketing your products and services.

 

7) What does it cost and how long does it take?

This isn’t easy to answer in a few words because it requires an explanation of the government fee structure and the different levels of legal assistance you can obtain.

 

8) What are the alternatives to registering a trademark?

Here are 3 examples of how real-life small businesses approached trademarks:

      1.Not registering.

Using an unregistered trademark limits your ability to stop others from using the same or a confusingly similar trademark. In every instance where you try to stop a confusing use, you’ll have to prove through convincing evidence that you own the trademark and that they are going to cause confusion and damage.

      2.Registering later when the business has more money.

Many businesses wait until they are comfortably making money before they take steps to register their trademarks. There are risks to this approach. First, until you have a registration, you are using an unregistered trademark and your ability to stop others from using a confusing trademark is limited. Second, it takes between 2.5 to 3 years to go through the registration process, and while your application is pending with CIPO, you have only an unregistered trademark and your ability to stop others from using something confusing is limited.

      3.DIY registering.

Trademark owners can DIY a trademark application and doing this is better than doing nothing to claim ownership of your trademark! However, registering trademarks requires knowledge of trademark registrability laws as well as how to classify goods and services. If you don’t get these things right in your application, you will receive objections and your application could potentially be refused all together. Speaking with a Trademark Agent in advance is well-worth your investment.

 

9) More questions? Speak to an expert!

There are many elements of intellectual property law: trademarks, copyright, and patents. Each of them is a unique area of law. 

It is best to consult with an experienced lawyer or Trademark Agent to look at your asset picture. If you have any questions, reach out to Cynthia Mason directly at cynthia@masonpc.com.

​

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Wait. A Secondary Will? How is that different from a Primary Will?

A Secondary Will, also known as a multiple will strategy, can be a financial planning tool to help you reduce the amount of tax your estate will have to pay after your death.  It applies to some people, but not to all.

Some homeowners and business-people use it to ensure that more of their assets make it into the hands of their loved ones.  If you only have a regular will (which we will call a Primary Will in this blog), like many of us do, then you run the risk that the government will take a larger amount of your estate via an Estate Administration Tax.  

Today’s blog was co-written by Laroux Peoples, a Wills & Estates lawyer in Toronto at www.peopleslaw.ca, who is experienced in Secondary Wills. 

 1) Why do you need a Primary Will at all?  

Before we get to Secondary Wills, here is a refresher on Primary Wills:

  • A Primary Will sets out what happens to your assets, and if you have children, can set out when they get your assets.
  • Makes it clear who has legal guardianship for any children under 18 years old.
  • A Primary Will identifies the Executor (also called the Estate Trustee). This person will manage your estate after you are gone, is responsible for doing your last income taxes, distributes your assets to your beneficiaries, pays any debts, etc).

2) What is probate?  Does it apply to all wills?

Here are some key points about probate:

  • Probate is the process where: (a) if there is a Primary Will, the Court makes it official that it is the last legally known valid will; this is generally needed before financial institutions will release funds to your Estate Trustee; (b) If there is no will at all, it is the process to appoint an Estate Trustee.
  • Not every estate will go through probate. Unfortunately, it is never fully known whether your Primary Will requires probate, until you die.
  • Probate is driven by the type of real estate you have, if applicable, and/or the amounts and locations of your assets at different financial institutions. Both of these, on death, determine whether probate is required. For example, if your assets are at CIBC and CIBC requires a probate certificate to release your bank accounts to the Estate Trustee, then probate is required on all the assets that fall into your estate.
  • Other key points to learn about include the fees, length of time, and who would need to complete the probate application for you. That is beyond the scope of this blog.
  • During the probate process, part of the application process involves paying an estate “tax”. This tax varies from province to province. In Ontario, the Estate Administration Tax (“EAT”) is 1.5%, and it is assessed on estate assets valued in excess of $50,000.

3) So, what is a Secondary Will?  Is it just for the wealthy?

  • It is an estate planning strategy used mostly in Ontario and British Columbia to reduce the amount of EAT payable on an estate (the estate taxes are higher in those two provinces). For Canadians outside these two provinces, it can apply to those who own property in either Ontario or BC.
  • It is not just for the wealthy.
  • Here are two examples from Ontario of when a Secondary Will may be utilized:
  • someone (i) owns their own incorporated business or (ii) is a shareholder of a privately-held family business that is incorporated.
  • in Ontario, someone’s property is a Land Titles Conversion Qualified property AND it qualifies for the First Dealings Exemption. However, this option is only open to very few property owners. Whether your property qualifies for this requires research by a Wills and Estates lawyer. See example 3 below.
  • There are other reasons for a Secondary Will but they are beyond the scope of this blog post.

4) If I have a Primary Will, do I also need a Secondary will?

At first glance, this may seem like overkill.   But if you have assets that might attract significant EAT if they are in your Primary Will, putting them in a Secondary Will could reduce the EAT your estate would be required to pay.  For example, you could put the shares of a private corporation, your personal effects (like jewelry) and your house (in certain cases) all in the Secondary Will.

Usually your Wills and Estates lawyer will need to prepare a new Primary Will and then also prepare a stand-alone Secondary Will.

 5) How come my lawyer, accountant or my financial planner never mentioned this?

Not all lawyers, accountants or financial planners are familiar with this strategy, especially if they don’t have experience dealing with estates.

6) Let’s look at three examples:

 Married or Common-law Couple who own a business and a house:

  • Danielle and her partner Tracy own a family home and have some savings (TFSAs and RRSPs). They are also co-owners of an incorporated business, the shares of which were recently valued at $1.5 million dollars.
  • If they each had a Primary Will only, then the shares of their corporation would become part of their probated estates.
  • The EAT payable just on the shares alone would be $21, 750.
  • This tax would be on top of (1) any capital gains taxes owing, (2) personal taxes owing; and estate taxes payment on the other assets in their estates (for example, their house, any other properties, jewelry, etc).
  • If Danielle and Tracy each had a Secondary Will, their combined estates would have saved that $21,750.

 

Example 2: Older Torontonian with older house purchase

  • Anita is in her 80s. She purchased her Toronto home in the 1960s. Her home was recently valued at $1.6 million; it’s her biggest asset. She also has some minor savings.
  • Her Wills and Estates lawyer discovers that Anita’s property is a Land Title Conversion Qualified property that also qualifies for the First Dealings Exemption (see above). As a result, it won’t require probate when she dies (meaning no estate tax will be due on the house), if she has a Secondary Will in place.
  • On the other hand, If Anita only has a Primary Will and no Secondary Will, and dies still owning that property, the EAT payable for the home will be $24,000.
  • Anita’s Wills & Estates lawyer would likely recommend: if Anita plans to remain in that home, to have a Secondary Will so that her estate can save $24, 000 in estate taxes.

 

Example 3: Family with raw land

  • Hina and Hema are sisters and they own 10 acres of raw land in Ontario together, in addition to their own downtown city condos where they each live. They did not create a corporation to hold the land, and they own it personally.  Their land was assessed at $6 million dollars.
  • If they each have a Primary Will, upon their death their estates each would have to pay $45, 500 (1.5% on $3 million each) on their land. This would be in addition to any other estate tax owing on their other assets.
  • Their Wills & Estates lawyer would likely tell the sisters:

(a) because they don’t own the land through a corporation, this reason for getting a Secondary Will does not apply to them; and

(b) If the raw land is registered in the (newer) Land Titles system instead of the (older) Land Registry system, the land is a probateable asset, and a Secondary Will will not change this; but

(c) if the raw land is registered in the (older) Land Registry system AND/OR it is Land Titles Conversion Qualified, AND it is also First Dealings Exemption qualified, then Secondary Wills may be a good strategy for them to save on estate tax.

 

7) Next steps: How do I know if should get a Secondary Will? Speak to an expert!

There are many elements of estate planning: wills, powers of attorney for both finances and care, life insurance, beneficiary designations on financial and insurance products; joint-ownership of land, in some cases, a Secondary Will, or even multiple wills (for example, for those who may have assets in more than one country), as well as trust planning. 

It is best to do a consultation with an experienced Wills & Estates lawyer to look at your asset picture. If you have any questions, reach out to Laroux Peoples directly at laroux@peopleslaw.ca.

​

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Do family businesses need shareholders’ agreements?

The short answer is yes.

The majority of Canadian businesses are family businesses.  One recent study done in conjunction with the Institute of Corporate Directors and University of Toronto, Rotman School of Management, states that 54% of first-generation businesses have shareholders’ agreements, while 82% of second-generation businesses do as well.  You can search for this study by its title: Private Family Enterprise Governance Survey: Why Family Business Success Matters for Canada.

One risk to small and medium family business owners is that they often do not realize that they should have a shareholders’ agreement in place. 

 

1) Why do you need a shareholders’ agreement at all?  

A shareholders’ agreement does many things, such as:

  • Protects the rights of minority and majority shareholders
  • Sets up governance
  • Clarifies management responsibilities: For example, is this a special shareholders’ agreement where the shareholders take on the fiduciary duties that normally are the legal duties of the directors of the company (through a unanimous shareholder agreement)?
  • Sets out how shareholders can or must part ways: For example, can they sell their shares? Can they sell to anyone? Can they buy shares from other shareholders? What prices will the shares be valued at, and how is that price determined?  Can they ever be forced to sell?
  • Provides for what happens if a shareholder dies

 

2) Why do family businesses in particular need one?

As noted above, he majority of Canadian businesses are family businesses. The first generation are the founders, the second generation may be the children of the founders, and by the third generation, if the business survives, outsiders may join.  A shareholders’ agreement is considered an important component of corporate governance and business management for a growing business.

For smaller family-run businesses, imagine if there was a family dispute that had the potential to spill over into the family business, such as a divorce of two spouses who run it together.  How would the business survive?

 

3) Consider the following scenarios: Would you be prepared?

Spouses:

  • If you and your spouse get divorced, do you want to keep running the business together? Or should there be a process to determine which one can buy the other one out?

 

Parents and Children:

  • What happens in the transition from the first generation to the next? Will the adult children run the family business along with their parents? Will the adult children’s say be equal to the parents? Or will the parents, in their role as founders, be “more equal” than the adult children when it comes time to vote or manage the business?
  • What are the family’s plans for the business? What if the adult children all have shares, but only one of the children will be running the company? Can that shareholder buy out her siblings? If so, at what price? Who determines the price? Could she force her siblings to sell to her? Or could they buy her out instead?

 

Siblings:

  • What if you and your sister have a business together, and she gets a divorce. Would you be ok with her former spouse getting half of your sister’s shares as part of their divorce settlement, and then running the business with them?  Would this be good for the business? Would it be good for family relations?
  • On a related note, often shareholders’ agreements among non-family businesses require that if a shareholder is getting a divorce, she sells her shares back to the company or to other shareholders rather than risk that they will have to run the business with the ex-spouse.

 

The best time to have these discussions is when everyone is on friendly terms. This blog post is a brief look at this topic; there are also many other aspects to consider when drafting a shareholders’ agreement, such as issues relating to tax, family, and wills and estates law.

 

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Is Your Home Address Public Info Because of How You Have Incorporated Your Business?

Are you a director, officer or shareholder in a Canadian corporation? Did you know your home address may be publicly available as a result?

 

When you incorporate a corporation, you are usually the first director(s).  The home addresses of directors, officers, and shareholders may or may not be required, and it may be publicly available.  This differs from province to province, as well as federally, so you should look into the requirements of the jurisdiction the corporation was incorporated in.

I once assisted a business law client on corporate matters.  My client was a start-up entrepreneur.  We only discussed the business aspects of her start-up.  Then one day, after working together for a while, she mentioned that she had safety concerns  and was speaking to the authorities about them.   As the client’s personal life was not part of my business law work with her it was not something that we initially discussed when we incorporated her new business.   

I fully support transparency with respect to corporate information, especially in my work on corporate ethics.  At the same time, we also need to talk about personal safety and make business-people, especially female and female-identified entrepreneurs, aware so that they can make the best decision for their personal circumstances.

 

7 things to know about the intersection of corporate information and your personal information:

 

1. Once I incorporate my corporation, what information about me is publicly available?

This all depends on whether the corporation was incorporated federally or provincially, and in which province as the provinces may have different rules:

  • In most jurisdictions, the names of the directors are public. When you incorporate your corporation, you are usually listed as the first director.  Within a few days of adding any directors, their names are also required.
  • The addresses of the directors are required in all cases.
  • In some jurisdictions, though, the home addresses of directors are required, whereas in others, an address for service is acceptable. (See item 5).

 

2. Wait! Isn’t my home address covered by privacy law? They can’t disclose it, right?

  • Your home address is considered your private information under the various federal and provincial privacy laws.
  • However, under corporate law, it is also important to let the public know who is responsible for a corporation. Corporate information in general is public, and the names and addresses of directors, etc, are considered part of that corporate information.

 

3. How will people see this?

  • You can go to ic.gc.ca, select  “Search for a Federal Corporation”, type in a corporation’s name, and see the director’s name and her address, as well as the  corporation’s registered address.  This is free of charge.
  • For a modest cost you can obtain a corporate profile report with more information about the corporation.
  • For provincial corporations it varies from province to province. For example, in my jurisdiction, Ontario, I can get a corporate profile report for an Ontario corporation for approximately $20.00 CAD.  It takes me about 5 minutes to get it.   

 

4. Must I disclose my home address? Are there alternatives? Can I use a PO box?

  • Some provinces require your home address and will make it publicly available.
  • In some other jurisdictions, you can use an address for service instead of a home address. An address for service is an address where someone can receive documents or mail on your behalf during regular business hours.
  • Federally, you can also use an address for service.
  • A PO box is not considered an address for service, and therefore should not be used.

 

5. If I update my address to an address for service (where this is permitted), will my home address be removed from the records?

  • At the federal level, any past information cannot be deleted, even its been updated.
  • For your province, you should contact the appropriate government department for business affairs and ask. In Ontario, the address would be replaced, but not removed.

 

6. What if I am not a director, but I am an officer /shareholder / beneficial owner instead?

  • Some Canadian jurisdictions require the names and addresses for officers and make such information public. Others require it, but do not make it public.
  • There is also at least one province that currently requires the names and addresses of (some) shareholders and beneficial owners, as well as information about their shareholdings, and makes it public.
  • Based on calls for greater transparency of corporations, it is possible that more jurisdictions will require this information and make it public.
  •  

7. Where can I get more information?

Here are some good resources:*

 

*Note: We are not affiliated with the authors of these resources.

​

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Do you send emails, texts or social media messages to (potential) customers? Could you be violating Canada’s Anti-Spam Legislation (CASL)?

Here are ten things to know about Canada’s CASL:

1. It applies to small businesses.

For example, if your business ever:

  • Blasted an email to a list of addresses that you bought from a third-party company?
  • Sent social media messages (eg, Messenger, WhatsApp, LinkedIn, etc) to friends, family and supporters to tell them about your newest service?
  • Texted old customers to keep them in loop on new promotions?

 

2. Why and when did it come into force?

The purpose is to protect the public from getting unwanted and also potentially dangerous emails that attempt to scam or phish people, or violate their privacy rights.   It initially came into force in 2014, with later amendments.

 

3. When & who it applies to:

It applies to anyone sending certain communications for a “commercial activity”. A “commercial activity” means any particular transaction, act or conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit…” 

This means, it can apply to a sole-proprietor, a small business-owner, a not-for-profit or a charity.

 

4. What it applies to: it applies to any commercial electronic message:

It applies to commercial electronic messages (CEMs) that are sent to electronic addresses.

As noted in 1), emails, texts, and messages on social media are included.

 

5. Is it ever ok to send CEMS? If yes, how can I eliminate risk to my business?

Provided you comply with the law, you can send out CEMs.   You must a) have the consent of the recipient, b) clearly identify yourself (or whomever its sent for), and c) provide an unsubscribe mechanism.

For example, is/ does your current system:

  1. allow you to keep track of each person’s consent? 
  2. ask people to opt-in to get communication from you, instead of asking them to opt-out?
  3. allow recipient’s to easily unsubscribe from your CEMs?

 

6. Consent: explicit , implied, and exemptions

In all cases, the sender that must be able to prove that they have the recipient’s consent, whether its explicit or implicit.  

a. Explicit Consent: If someone opts in or agrees to receive your CEMs, this is explicit consent. Explicit consent does not expire, but the recipient can withdraw it at any time. 

b. Implied Consent: In some cases, for a limited time, the recipient’s consent may be implied. Eg.:

    1. if they were a recent customer of your business
    2. If someone gave you their business card and did not make a statement that they did not wish to receive promotional material from you and the CEM you send relates to their role, function and duty in an official or business capacity.
    3. where you are a club, association or voluntary organization, and you send CEMs to the membership.

c. Exceptions: CASL contains exceptions and may allow you to send CEMs: after receiving a referral, due to a business-to-business exemption or the conspicuous publication exemption

 

7. Can someone make a complaint against me? What are the penalties if I breach CASL?

  1. Yes, they can report you to the Consumers’ Association of Canada.
  2. CASL is one of the strictest anti-spam laws in the world; maximum penalties can be $10 million CAD.

 

8. Here are some risky scenarios that may apply to a small business*:

Here are some examples of where a sender of CEMs could put themselves at risk:

a)       Small business buys email addresses from a vendor

You are a small business and need an inexpensive way to spread the word about your services to tons of people. You buy a list of email addresses from a 3-party vendor. That vendor created that list by using “web crawler” software to mine the Internet for email addresses.  The 3rd party vendor did not get everyone’s consent.     Is this ok?

b)      Organization collects addresses for one purpose, then sells them for another

You have a website for a Great Dane owners club.  Several of the members complain that they are getting spam emails trying to sell them dog food.   It appears that your company sold a list of its members’ addresses to the dog food company without the consent of the dog owners.   Is this ok?

c)       Not collecting, but generating addresses

A tech-savvy entrepreneur wants to sell email address lists to marketers.  But this entrepreneur does not want to “steal” from any individuals.  So instead of using actual people’s email addresses, she uses a tool that generates email addresses. Her list includes common names with common email domain names.

She claims that she did not “scrape” these email address from the web. She offers very low prices, but you find out that she did not get any consent from individuals to use their email addresses.   Can you use her list? 

 

* Scenarios from https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/r_o_p/canadas-anti-spam-legislation/casl-compliance-help-for-businesses/casl_guide/

 

9. For more information:

Three government bodies, in partnership, enforce Canada’s Anti-Spam Legislation together:  Canada’s Competition Bureau, the Office of the Privacy Commissioner, and the Canadian Radio-television and Telecommunications Commission (CRTC).  They all provide information, including:

a. Canada’s Anti-Spam Legislation website: fightspam.gc.ca

b. Competition Bureau Canada: FAQs about Canada’s anti-spam legislation:

https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03765.html

c. Canadian Radio-television and Telecommunications Commission (CRTC): Enforcement Advisory of notice for businesses and individuals on how to keep records of consent:

www.canada.ca/en/radio-television-telecommunications/news/2016/07/enforcement-advisory-notice-for-businesses-and-individuals-on-how-to-keep-records-of-consent.html

d. Office of the Privacy Commissioner of Canada

Guidelines for obtaining meaningful consent:  https://www.priv.gc.ca/en/privacy-topics/collecting-personal-information/consent/gl_omc_201805

Helpful Tips for Businesses doing E-marketing:

https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/r_o_p/canadas-anti-spam-legislation/casl-compliance-help-for-businesses/casl_tips_org/

 

10. Test your knowledge!

Try this quiz to test your knowledge:  https://fightspam.gc.ca/eic/site/030.nsf/eng/00016.html

​​

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Not sure if, when, or why you should incorporate your business? Then read on!

Here is some basic information to help you reduce your personal liability (and maybe your tax bill too!) by incorporating your business.

Why do people incorporate their businesses?

The main reasons are: reducing personal liability as a sole proprietor, reducing personal income tax, and being able to have investors. There may be other reasons as well, such as insurance and estate planning.

Do I HAVE to incorporate my business?

No. It is not a requirement. Many small businesses incorporate right away, while others carry on as a sole proprietor or in partnership without ever incorporating.  It depends on the business owner and her objectives.

What does incorporating mean?

When you incorporate a business, you create a new legal entity: the corporation.   The corporation bears liability for the actions of the business, not you.  This means you no longer have unlimited personal liability.

The corporation files its own taxes and can hire you as an employee.  You can earn money from the corporation as an employee, or by dividends or both.

Incorporating makes it possible to offer shares to investors or bring in a “partner” as a co-shareholder.

The money left in the corporation would be taxed at the corporate tax rate.  The money you earn from the corporation would be taxed at your personal income tax rate.

You incorporate by filing certain documents with your provincial or territorial government including Articles of Incorporation (Ontario) and paying filing fees. You must do taxes each year and keep your annual corporate records up to date.  CLICK TO SEE BLOG 1.

When you incorporate, at least one director must be appointed.  Directors have a fiduciary duty to the corporation to do what is in the best interests of the corporation and not what is in the best interests of  shareholders.  Directors who fail in their fiduciary duty can be liable under the law (eg. Ontario Business Corporations Act).  Some corporate statutes require resident Canadians to be the majority of directors.

Should I incorporate my business? 

As noted above, you do not have to incorporate.   However, businesspeople often ask themselves these questions when deciding:

  • Do I want to eliminate the risk of having unlimited personal liability?
  • Do I plan to grow and get investors?
  • Will it help or hurt my personal income tax situation?
  • Do I (possibly) want to share management?

It’s an individual choice and should be made with legal and accounting advice.

 

Example 1:

You start hand-making furniture and gain a following on Instagram.  Your business grows fast. Your biggest sale is for 100 dining chairs to a new restaurant, and its worth $50, 000 in revenue to you.

Within 6 months, the restaurant successfully sues you for $60, 000.  The reason?  The chairs keep breaking with the restaurant’s customers crashing to the floor. The restaurant lost a lot of business as a result.   They sued you for the original $50, 000 plus $10, 000 for lost business.

If you incorporated, the corporation would be on the hook for the $60, 000, if it had $60, 000 (or was insured for this type of risk).  If the corporation only had $40, 000 in assets, then the restaurant would only be able to get $40, 000.

You would NOT have to take the additional $20, 000 out of your personal assets (unless you had given personal guarantees).

What are the alternatives to incorporating?  Sole proprietorships and general partnerships. 

  • Sole proprietorship
    • As soon as you start a business (unless you incorporate it), you are a sole proprietor.
    • You do not have to take any steps to be a sole proprietor, it happens automatically; other than a simple filing with the local government if you carry on business in a name other than your own.
    • There is no difference between you and your business in terms of liability or income taxes.
    • You have unlimited personal liability.
    • Income from the business would be added to your personal income taxes.
    • Losses from the business could be deducted from your personal income taxes.

Example 2:

Going back to our furniture business, as the sole proprietor you would be on the hook for $60, 000 personally.  Meaning that if you did not have the money to pay the $60, 000, you might have to take the money out of your house or from other personal assets.

  • Partnership
    • Partners are two (or more) people (or businesses) who carry on business together for the purpose of a profit (even if the business is never profitable).
    • You do not need to register your partnership, its automatic (and also like the sole proprietorships, if your partnership involves a business name you would need to file it). It is basically as if you and your partner are both sole proprietors.
    • Each member of a partnership has unlimited personal liability, and either partner is liable for 100%.
    • Each member of a partnership has a fiduciary duty to do what is best for the partnership, and not for themselves.
    • There are different types of partnership: general partnerships & limited partnerships. This blog relates to general partnerships.

Example 3:

If your sister had partnered with you 50/50 in the furniture business, you would both be responsible for the $60, 000 on a joint and several basis, meaning the restaurant could come after you or your sister for the whole $60, 000.  The restaurant could choose to pursue your sister for all of it.  Or you.

What if I am a professional (doctor, lawyer, accountant, etc)?

  • Many professionals are not allowed to incorporate unless they use a professional corporation. Check with your governing body.
  • If you prefer the partnership route, you can enter a general partnership or, in some provinces, a limited liability partnership.
  • In both cases, the professional still faces unlimited personal liability for professional negligence claims.

 

How do I know which option is best for me?

Here is a lawyer answer for you: It depends!  There is no one-size-fits-all answer.

It depends on what is best for you and your business, at that time.

Ensure that you speak to both an accountant as well as a lawyer, so that you understand the different ways this decision to incorporate (or not) may affect you, your business and your family.

 

​

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Do you know your corporate responsibilities once you incorporate your corporation?

 If not, do you know the risks?

Congratulations! You have incorporated a corporation!  You searched the name to make sure no one else had it, you selected the name, you determined the share structure and then you filed the Articles of Incorporation.   It feels so good to be done with the paperwork!

Wait! Are you sure you are done? Not so fast…

Recently, I have come across several small successful businesses run by both savvy entrepreneurs or professionals.   One thing they all had in common?  They did not know about their legal requirement to prepare directors’ and shareholders’ resolutions (organizing or annually), what it meant to organize their corporations, or what a Minute Book was.  Some of them did not know what a resolution was.

This article is for you if you are asking:

  • What is the risk to my business if I don’t follow these requirements?
  • How does it benefit my business if I do them?
  • What do these terms mean: directors’ resolutions, shareholders’ resolutions, organizing a corporation, and Minute Books?
  • How do I eliminate these risks to my business?

1. Let’s start with the risk: What is the risk to your business if you don’t organize your corporation, prepare the required annual resolutions or have a Minute Book?

Failure to do so can have many negative implications for a business such as:

  • Failure to meet ongoing legal obligations under either the Ontario Business Corporations Act or the Canada Business Corporations Act (collectively the “Acts”). Under the Acts, the corporation is required to have one shareholders’ meeting and one directors’ meeting in a twelve-month period.  Certain decisions taken by the corporation must have shareholders’ approval; some special decisions must have super majority approval to be valid.  Properly-written resolutions can help you meet these legal requirements.
  • Canada Review Agency (CRA) audits/ penalties. For example, if your corporation is paying a shareholder money as a dividend instead of salary, and there is no paperwork to support this, you could have an issue with the CRA and the shareholder may have to pay more in taxes (dividends are taxed at a different rate than salaries and/wages) and/or face penalties.
  • Turning away potential buyers of companies. When potential buyers (or their lawyers or accountants) do due diligence on your business, one thing they will ask to see is the Minute Book. An incomplete or non-existent Minute Book could be a red flag to them that corporate governance is not taken seriously in your corporation. The corporation will also spend a lot more money in legal fees to have the Minute Book brought up to date on a “RUSH” basis.
  • Not being able to meet the corporation’s obligations to its shareholders. Under the Acts, each shareholder has the right to see (parts of) the Minute Book. All the shareholders’ resolutions and many other corporate records must be kept in the Minute Book and be available for inspection by shareholders.  Generally speaking, directors’ resolutions are also kept in the Minute Book, but they are not made available for shareholder inspection.
  • Challenges from other shareholders of past or current decisions. Sticking with the example of dividends, what if you had put in a lot of work in your corporation and the other shareholder(s) and director(s) agreed to give you a bigger dividend than the other shareholders.  Then, 1-2 years later, a disgruntled shareholder asks to see the Minute Book and says that there was no resolution granting you the dividend.  Could they accuse of you having improperly taken the money from the corporation?

 

2. How does it benefit my business if I do them?

In brief, you will:

  • Meet your legal requirements to have these documents in place and up to date.
  • Reduce or eliminate potential issues with CRA for failure to have these.
  • Demonstrate good corporate governance to your stakeholders (ie, banks, potential investors or buyers, etc).
  • Build discipline into how you make and record business decisions. This is good business practice that is also good for business.

 

3. What are these: directors’ resolutions, shareholders’ resolutions, organization of a corporation, and Minute Books?

Resolutions: Directors’ Resolutions and Shareholders’ Resolutions

Resolutions are, in essence, formal written documents that are required to document the corporation’s important decisions.  They are signed (and dated) by a majority (or more) of either the shareholders or directors of a corporation, depending on the topic.

Organizing a Corporation

Once you incorporate your business under the applicable Act, it needs to be organized within a certain amount of time.

Organizing means setting up the initial and key business frameworks and decisions, such as:

    • approving the company by-laws
    • the shareholders electing the directors, and directors’ consents
    • the directors appointing the officers
    • the shareholders appointing the auditors (or waiving this) and appointing the accountants
    • determining who has authority to do the company’s banking
    • setting the company’s year-end
    • issuing shares
    • determining how many directors there will be
    • and so forth.

Annual Resolutions

Every year after the initial organizing resolutions are done, the corporation’s directors and shareholders must issue annual resolutions.  The annual resolutions cover topics such as:

    • approval of financial statements
    • appointment of auditors (or waiver) and appointment of accountants
    • election of directors (by shareholders) and appointment of officers (by directors), and each director’s consent to act as a director (directors have liability for the acts of the corporation)
    • any transfer of new issue of shares
    • dividends
    • changes to the items in the organizational resolutions
    • special resolutions (where required by law)

Minute Book

While a Minute Book is not a specific requirement, it is something that most (if not all) corporations have.

A Minute Book is a book (basically a special binder) that holds all of the resolutions mentioned above, as well as list of shares and when they were issued (share register), a list of when directors were elected and/or resigned and officers were appointed and/or resigned, (director register and officer register), the bylaws, etc.

Many corporations leave the Minute Book with their lawyer or accountant, many of whom now store the Minute Book in a cloud-based services.

As noted above, shareholders of a corporation are entitled to see many of the above-noted documents, but not the directors’ resolutions.  In a future blog, we will talk about when the shareholders and the directors are the same people, as is often the case in small, closely-held corporations.

 

4. How do I eliminate this risk?

If your corporate records, organizing or your annual resolutions are missing or are deficient, you will need to update your records.  How can you do this?  Where there are deficiencies it is best to speak to a lawyer that practices corporate law.

In some simple cases it may be possible to do one overall resolution to rectify the deficiencies; for example, if the corporation never issued any dividends or where the company has always had the same directors and officers.

Where corporate matters are more complex, such as related to issuing shares following the initial offering, redeeming or cancelling shares, or issuing dividends, the resolutions for those transactions will be more complex and will most likely need to be done on a year by year basis. Other measures may also be required.

The best way to protect your business is by understanding and protecting yourself from business risks.

Let us know if we can help you.

 

Today’s blog was co-authored with Colleen Peffers of Peffers Law (http://pefferslaw.ca/)

Amee Sandhu has been a business lawyer in Ontario for 20 years.  She created Lex Integra Professional Corporation in 2019 and focuses exclusively on business law and corporate ethics.  

In her current practice Amee advises clients on commercial, corporate, integrity, anti-corruption, ethics and compliance, and supply chain risks. 

Lex Integra:

Understand your risks. Perform with Integrity.

The purpose and contents of this blog is to provide information only, and it does not constitute legal advice.  Reading this blog does not create a solicitor-client relationship between the reader and Amee Sandhu or Lex Integra. It is recommended to engage (hire) a lawyer if you require or are interested in legal advice.

Connect with Amee

LinkedIn , Twitter , Instagram, Facebook

Stay Social with Canadian Small Business Women: