A corporation incorporated or continued under the Canada Not-for-profit Corporations Act must establish a registered office. What is the purpose of the registered office requirement?
The articles of a corporation incorporated or continued under the Canada Not-for-profit Corporations Act must set out the province within Canada in which the registered office is to be situated. The province where the registered office is situated can only be changed by articles of amendment (or equivalent articles). The address within the province may, however, be changed by filing a Form 4003 (Change of Registered Office Address).
The registered office provides a connection between the corporation as an artificial entity and the physical world, creating a readily ascertainable place where persons (including the Director under the CNCA) can contact the artificial entity with certain legal effect.
What follows summarizes most of the key functions that the CNCA assigns to the registered office. These functions include where certain notices to the corporation must be sent and, in some cases, where certain notices relating to the corporation must be published and which courts have subject-matter jurisdiction (i.e., in respect of an investigation, liquidation or dissolution of a corporation).
Notice to, or Service on, the Corporation
The registered office is:
- the place where notice of a document required to be sent to or served on the corporation may be sent and is deemed to be received;
- the place where a director who wishes to dissent from an action taken by the board may send his or her dissent; and
- one of the places where a requisition for a meeting of members must be sent.
Location of Corporate and Accounting Records
The registered office is:
- the default location (meaning that the board can choose another location in Canada) of corporate records, including:
- the articles, by-laws and, in the case of a non-soliciting corporation, any unanimous member agreement;
- resolutions of members and minutes of meetings of members;
- board resolutions and minutes;
- committee resolutions and minutes; and
- the registers of members, directors and officers;
- the default location of the corporation's accounting records;
- the place where members may examine and obtain a copy of the annual comparative financial statements (including the statement of financial position, statement of comprehensive income, statement of changes in equity and statement of cash flows) and the report of the public accountant on the financial statements (if the corporation elects not to send the financial statements and report directly to each member); and
- the place where copies of financial statements of subsidiaries, if any, must be kept (where they must be available for examination by members of the parent corporation).
3. Determination of Judicial Venue
The province or territory in which the registered office is located (but not the specific address in the province or territory) determines which provincial or territorial court has jurisdiction:
- on a liquidation or dissolution of the corporation; or
- to order an investigation under Part 15 of the CNCA.
4. Publication of Notices
The province or territory in which the registered office is located determines the place where:
- notice of a proposed amalgamation must be published if it to be considered adequate notice to creditors;
- notice of a court-ordered liquidation must be published; and
- the liquidator must publish notice of the application to approve the final account.
In light of these functions (especially those listed at items 1 and 2 above), the best choice for the address of the registered office is generally the head office of the corporation. This is where the corporation will have senior administrative and accounting staff available to discharge the mandatory functions listed above, such as handling notices served on the corporation and maintaining the corporation's legal and financial records.
If the corporation does not have an administrative location, then often the corporation will use its law firm to act as its registered office (although it will generally opt to keep its accounting records elsewhere).
A private residence (for example, the residence of a director or officer) is generally not suitable as a location for the registered office. For a variety of reasons, an individual may cease to be involved or associated with the corporation. Or the individual may move and forget to file a Form 4003 - which exposes the corporation to the serious risk of having a registered office where notices (such as a pending dissolution notice) can legally be sent but where no one has an interest in acting on them. A private residence is also generally unsuited to the type of inspections that members are entitled to conduct at the registered office.