Wednesday, January 18, 2012

Overview of the Canada Not-For-Profit Corporations Act

Recently, a new law called the Canada Not-For-Profit Corporations Act ("CNPCA") came into effect aimed at eliminating unnecessary regulation and providing flexibility to the not-for-profit sector. The new legislation modernizes the corporate governance of not-for-profit corporations by promoting accountability, transparency and efficiency.

The Act in its entirety is lengthy and detailed so not-for-profits will have up to 3 years to transition into compliance. Below is a list of some of the Act’s more important provisions that may affect you and your not-for-profit.

The process of incorporation has become more streamlined under the new Act making it faster and more efficient. Instead of submitting the letters patent and by-laws for review, incorporations now occur “as of right” upon submission of the signed articles of incorporation.

Before the Act was implemented Industry Canada required incorporating not-for-profits to prepare and submit by-laws governing corporate matters to be reviewed and approved at the time of incorporation.  Under the new legislation it is no longer necessary to draft and submit by-laws with the application for articles of incorporation. The new Act requires by-laws that deal with member issues only. 

Members’ rights are enhanced under the new Act. The new rights include: the right to submit a notice of proposal to request said proposal to be discussed during a members meeting; the right to request a meeting at any time; the right for non-voting members to vote separately from voting members on matters that impact membership rights; and the right to access corporate records to monitor board compliance.

A director’s liability and standard of care are protected by the “due diligence” defence as understood in the common law duty of acting in honest and good faith. In this legislation specific liabilities are given to directors concerning payment and distribution to members, debt obligations, and wages payable to employees. However, directors who meet the standard of care are protected from liabilities through the “due diligence” defence under the new Act.

Financial Accountability:
The Act divides not-for-profit corporations into soliciting and non-soliciting corporations, which are subject to different regulations depending on which category your not-for-profit falls under. Your gross revenues are also dependent upon the rules and requirements for reporting under the new legislation.  

To facilitate the change, Industry Canada will not charge initial filing fees related to transitioning from the CCA to the NFP Act. To view the Act in its entirety, please click here.