Posted April 3, 2020
Updated May 22, 2020
In recognition of the challenges associated to the COVID-19 pandemic, the federal government and the government of Ontario announced new rules for not-for-profits and charities in early April. These measures involve meetings of members and directors, in addition to compliance with filing deadlines.
The government of Ontario passed an Emergency Order introducing a new regulation for Ontario corporations subject to the Ontario Corporations Act and Ontario Business Corporations Act. The regulation gives greater flexibility to corporations, including not-for-profit corporations and charities, to hold virtual meetings and extends timelines for Annual General Meetings (“AGMs”).
The federal government has issued options for virtual meetings and delays in calling AGMs for federal corporations, including not-for-profits and charities, under the Canada Not-for-Profit Corporations Act (the “CNCA”) and the Canada Business Corporations Act. The federal government has also extended tax filing deadlines.
The new federal and provincial measures are outlined below.
Rules for Ontario Corporations (if provincially incorporated)
Virtual Meetings of Directors and Members
Corporations in Ontario, including not-for-profit corporations and charities, may now hold virtual meetings of directors or members, even if the corporation’s letters patent or by-laws do not allow for them. The meetings may be held electronically or over the phone. A member will be considered present at a members’ meeting if he or she can communicate or vote at the meeting. In a meeting of directors, the directors must be able to communicate with each other “simultaneously and instantaneously” to be considered present. A series of emails, for example, would not qualify as a meeting.
Timelines Extended for AGMs
In Ontario, an AGM may be postponed up to 90 days after the termination of the emergency order. If the government ends the emergency order within 30 days before the AGM, the corporation has 120 days after the termination of the emergency order to hold the AGM. These timelines are retroactive to March 17, 2020.
Rules for Federal Corporations (if federally incorporated)
Options for Virtual Meetings and AGMs
Corporations Canada has issued options for federal not-for-profit corporations and charities with regards to virtual members’ meetings and AGMs. Corporations may hold virtual members’ meetings, if permitted by their by-laws. If the by-laws do not allow for virtual members’ meetings or are silent on virtual members’ meetings, the following options are available to your organization:
- Hold a partially virtual meeting, where some participants attend in-person and others via virtual means.
- The Board of Directors may change the by-laws to allow for virtual members’ meetings, with the change effective until approval at the next meeting of members.
- Delay the AGM by application to Corporations Canada. If approved, you must send notice of the AGM before October 31, 2020 and hold it before December 31, 2020. The application to delay the AGM is available online: https://www.ic.gc.ca/eic/site/cd-dgc.nsf/frm-eng/JCRE-BNGKQY (Note that you must apply for the delay at least 30 business days before the date you would have sent the initial notice calling the AGM.)
- If you have a small number of members, you may opt for a written resolution instead of an AGM, which could include a minimal number of items such as the election of directors, consideration of financial statements and appointment of an auditor/public accountant.
With respect to meetings of directors, according to the CNCA, directors may hold a meeting of directors electronically or over the phone, if permitted by the by-laws and/or with the consent of all directors. Directors must be able to communicate adequately during the meeting. Note that a director who participates in a virtual meeting is deemed to be present at the meeting.
Deadlines Extended for Tax Filings
The Canada Revenue Agency has extended deadlines to file the T2 Corporation Income Tax Return and/or the T1044 Non-Profit Organization Information Return due to COVID-19. If the T2 or T1044 forms are due between March 18 and June 1, 2020, they are now due on June 1, 2020.[1] For charities, if the T3010 Registered Charity Information Return is due between March 18 and June 1, 2020, the deadline for filing has been extended to December 31, 2020.
PooranLaw is committed to supporting not-for-profits, charities and social enterprises during the COVID-19 pandemic. We will continue to monitor any developments and provide up-to-date information.
[1] These forms are usually due six months from the corporation’s financial year-end i.e. a March 31 year-end means a September 30 filing date, and a December 31 year-end means a June 30 filing date.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
