Tuesday, January 23, 2018

Doing Business in Canada – Part 3 – Business Structures

Foreign persons (individuals and corporations) wishing to establish a business in Canada must decide whether to do so as a sole proprietorship, a partnership of some form, a joint venture or as a corporation of some form. A decision as to whether to establish a branch office or a separate Canadian business organization also must be made.  A wide variety of legal arrangements may be used to carry on business activity in Canada. Factors in the decision-making will include the circumstances of the investor, the nature of the business activity, the tax implications and the potential liabilities related to the business undertaken.

Corporations with Share Capital

Branch Operations

A branch operation in Canada must be registered in each of the provinces in which it carries on business. In addition, foreign entities must complete many of the same disclosures and filings with the federal and provincial governments as are required of domestic entities.

Generally, if the Canadian operation is expected to incur significant losses in its early years of operation, the foreign entity may wish to carry on business in Canada directly through a branch, in order to deduct those losses for foreign tax purposes, if possible. A Canadian branch structure might also be relevant to enable a better matching of the Canadian corporate tax paid with the foreign tax credits available in the home jurisdiction. 

Provincial or Federal Corporate Registration?

Most provinces and territories in Canada have their own corporate legislation. In limited circumstances (for example, banking) the incorporation must be done federally. The federal legislation is the Canada Business Corporations Act (“CBCA”). The provincial and territorial legislation is similar with minor differences. Some provinces and territories, for example, have no requirements for the directors of a corporation to be resident in Canada.

Under the Federal CBCA, foreigners should be aware of the following:

1.         A Canadian corporation must have twenty-five percent of its directors being resident Canadians. A resident Canadian can be either a Canadian citizen or a Canadian permanent resident. Each corporation is required to have a minimum of one director. A director must be an individual person. Directors need not own any shares in a corporation.
2.         A director of a Canadian corporation is subject to a number of liabilities and obligations under corporate law and under federal and provincial legislation. These include liabilities involving environmental, payroll, securities, pensions and tax.
3.         Single shareholders are permitted in a Canadian corporation. The identities of a Canadian corporation’s shareholders are not a matter of public record and a corporation is not obliged to disclose the names of its shareholders, unless it is a public company or a company carrying on business in Québec.
4.         It is common for shareholders to enter into a unanimous shareholders’ agreement to govern the relationship between the shareholders, and to restrict the powers of directors. Minority shareholders have statutory rights and remedies.
5.         Annual financial statements must be approved by the shareholders at an annual meeting properly constituted.
6.         Financial statements are only required to be filed with government bodies for public corporations.
7.         Statutory books and records of a Canadian corporation must be kept in Canada.

The advantages of a corporate structure include:
1.         Liability is limited to the assets of the corporation. The shareholders do not own the property of the corporation, and the rights and liabilities of the corporation are not those of the shareholders. The liability of the shareholders is generally limited to the value of the assets they have invested in the corporation to acquire their shareholdings.
2.         The corporation is treated as a separate entity for tax purposes and there may be tax advantages to using a corporation.
3.         Corporate shares are more readily marketable compared to partnership units/interests or joint venture interests.


Another form of carrying on business in Canada is in a partnership. A partnership is not a separate legal entity. The “partnership” is usually subject to a partnership agreement where one or more individuals carry on business in common with a view to profit. On dissolution of the partnership, the individual partners share in the profits, losses and net proceeds. The partnership agreement typically also deals with events such as death, selling interests in the partnership, retirement, management and other common issues to a business.

In Canada profits and losses flow through to the individual partners subject to some rules under the Income Tax Act. A general partnership’s disadvantage is that each partner is personally liable for the liabilities of the partnership. Each partner’s assets are exposed in the event of the assets being insufficient to cover the liabilities. Limited partnerships are available in some instances to be used. The liability of a limited partner is limited to the extent of the partner’s investment in the partnership, provided that the partner does not take an active role in the business that could attract liability for a decision or action.

Unlimited Liability Corporations

An unlimited liability company (“ULC”) can be formed under the laws of Alberta, British Columbia or Nova Scotia. Legislation in each province is different so an assessment of the advantages and disadvantages of the legislation for the particular business activity is necessary.  A ULC is a form of corporation where the shareholders of the ULC can be liable for the obligations of the ULC. In this respect, a ULC can be similar to a general partnership and is different from the common form of corporation where the corporation’s shareholders are not, in general, liable for the liabilities, acts or omissions of the corporation. This unique nature of the shareholder liability under an ULC also requires that the liability be assessed and mitigated. Some advantages may arise from tax perspectives. In the U.S., for example, the IRS treats the ULC as a flow-through. In Canada, an ULC is treated as any other corporation. The end result is that a ULC is generally a hybrid entity – a corporation for Canadian tax purposes and a flow-through entity for U.S. tax purposes. For U.S. businesses operating in Canada, there may be some advantages in the right situation. Professional advice should be sought.


The simplest form of business organization, a proprietorship, exists when an individual person carries on business as the sole owner without incorporating. At law, there is no distinction between the proprietorship and the owner; the proprietorship’s income is the owner’s income and the proprietorship’s liabilities are the owner’s personal liabilities. For tax purposes, the proprietorship is not treated as a separate taxpayer. 

Joint Ventures

The term “joint venture” does not have a precise legal definition in Canada. It typically refers to any situation where two or more legal entities share in a common venture. It can refer to joint venture corporations, to partnerships of corporations or, most commonly, to a structure (usually referred to as a contractual joint venture) under which separate corporations own certain assets in common, in the expectation that the venture does not constitute a partnership, at least for tax purposes. The relationship is usually governed by a joint venture contractual agreement.

Corporate and Trade Names

Registration of corporate and trade names is available federally and in the provinces and territories. Name registration, by itself, does not constitute “incorporation” nor does it give the entity proprietary ownership in the name. It simply is a practical way to protect the name as most of the registrars in the provinces will refuse to allow a name to be registered in that province that is the same as, or substantially similar to, that of another existing corporation within that jurisdiction. A name that is used in association with goods or services can be protected by registering it as a trademark under the federal Trademarks Act. Registration gives the owner of the trademark the exclusive right to use the trademark in association with its goods and services throughout Canada. 

Canada Introduces Electronic Logging Device Regulations

On December 16th, 2017 Transport Canada introduced draft regulations for the implementation of electronic logging devices for hours of service for commercial motor vehicles (“CMVs”). Stakeholders are entitled to provide Transport Canada with commentary over the next sixty days on the draft regulations published in the Canada Gazette Part 1 Vol. 151, No. 50. (*1)

The introduction of the draft regulations coincides with the U.S. federal government hours of service rules coming into force December 18, 2017 that mandate the use of an electronic logging device (“ELD”) in CMVs. Canadian motor carriers operating in the United States (estimated at 82,100) will be required to comply with the U.S. legislation. (*2)

An ELD is a piece of hardware that connects directly to the engine’s control module to automatically record driver compliance with hours of service requirements.  ELDs replicate and automate the logbook process. Engine information on speed, motion changes, distance driven, and engine hours are automatically tracked and loaded into the ELD system. GPS location information is also tracked in the ELD. The driver simply needs to log in, and comment on each change of status.

The executive summary of the draft Canadian regulations states:
The current Commercial Vehicle Drivers Hours of Service Regulations (the Regulations) require drivers of commercial buses and trucks to self-report their on-duty time, off-duty time and driving time in a paper- based daily log, and also permit the use of an electronic recording device (ERD). An ERD is a first-generation device that is subject to few technical specifications. The information generated from these daily logs can be falsified, incomplete, duplicated or missing altogether in an effort to avoid accountability for non-compliance with the Regulations. It can be difficult and frequently impossible for roadside enforcement or the motor carrier to detect non-compliance by the driver simply by viewing the daily logs. Non-compliance with hours of service (HOS) requirements by a motor carrier or driver can significantly increase crash risk and provide the non-compliant operator with a competitive advantage over those motor carriers that comply with the Regulations.
The proposed amendments are applicable to CMVs that are federally regulated; that is, those vehicles that operate extra-provincially. CMVs operating solely within a province are not affected. It will be up to each province to decide if the federal regulations will be implemented for provincially operated only vehicles. Transport Canada estimates that there are 174,700 federally regulated CMVs based in Canada. Of this total, the drivers of an estimated 146,300 CMVs are required by the regulations to maintain a paper-based daily log because they operate their CMV outside of a 160-km radius of their home terminal.

The proposed regulations are aligned with the U.S. requirements. The regulations require ELDs to be phased in over a two-year period from the date the regulations become legislation. The proposed regulations mandate the use within two years and mandate the use of more specific requirements for supporting documents (e.g. bills of lading) that must be kept by the driver and motor carrier. The regulations would also incorporate by reference a technical standard to establish minimum performance and design specifications for ELDs. (*3) The U.S. Final Rule (giving effect to the current ELD requirement) also includes extensive technical specifications for the devices and revised requirements for supporting documents in order to simplify the validation of records of duty by motor carriers and enforcement, thereby reducing the administrative burden on motor carriers and drivers.


There will be four main exemptions to the mandatory requirement to use an ELD, namely: CMVs that are operated under a permit issued pursuant to the regulations by a provincial or territorial hours of service director, or under a statutory exemption, CMVs that are subject to rental agreements for a term of 30 days or less, and CMVs that were manufactured before the year 2000[MH1] .

The following table illustrates the exemptions in the U.S. and Canada.

A truck, tractor, trailer or any combination of them that has a registered gross vehicle weight less than 4,500 kg
CMV has a gross vehicle weight rating or gross combinations weight rating of less than 4,536 kg.
A bus that is designed and constructed to have a designated seating capacity of 10 or less persons, including the driver
A CMV designed or used to transport less than 8 passengers including the driver, for compensation

A CMV designed or used to transport less than 15 passengers including the driver, and is not used for compensation

Drivers who use paper records of duty status for not more than 8 days out of every 30-day period

·       Drivers who are required to keep records or duty status not more than 8 days within any 30-day period.
CMV manufactured before the model year 2000
·       Drivers of vehicles manufactured before 2000 and drivers of vehicles manufactured before the model year 2000. (As reflected on the vehicle registration)

Drivers who conduct drive-away-tow-away operations, where the vehicle being driven is the commodity being delivered, or the vehicle being transported is a motor home or a recreation vehicle trailer with one or more sets of wheels on the surface of the roadway

- Driver drives or is instructed to drive a commercial vehicle within a radius of 160 km of the home terminal
-the driver returns to the home terminal each day to begin a minimum of 8 consecutive 8 hours of off-duty time
- the motor carrier maintains accurate and legible records showing, for each day, the cycle the driver followed and on-duty times and keeps those records for a minimum period of 6 months after the day on which they are recorded
-Short Haul Exception: Operate within a 100/150 air-mile radius of the normal work-reporting location (100 air-miles if you are a commercial driver’s license (CDL) driver and 150 air-miles for drivers without a CDL).
-Start and return to the same location.
-12 consecutive hours of duty time.
-Drive time cannot exceed 11 hours.
-Must log a minimum of 10 consecutive hours of off-duty time after shift.

CMV operated under a permit issued under the regulation (there are special permits for

CMV operated under an exemption issued under the Motor Carrier Act

CMV that is subject of a rental agreement for a term of no longer than 30 days

Definition of On-Duty Time does not include driving time for the driver’s personal use, if:
(i) the vehicle is not used in the course of the business of the motor carrier,
(ii) the vehicle has been unloaded, (iii) any trailers have been unhitched,
(iv) the distance travelled does not exceed 75 km in a day,
(v) the driver had recorded in the daily log the odometer reading at the beginning and at the end of the personal use, and
(vi) the driver is not the subject of an out-of-service declaration under section 91. (issued by a director or inspector for a violation)


The proposed regulations require motor carriers to acquire and install ELDs in their CMVs that are compliant with the technical standard. (*4) What were previously referred to as “daily logs” will now be known as “records of duty status”. Drivers will be required to enter into the ELD some of the information associated with their record of duty status (e.g. on-duty time associated with fueling, loading or unloading the CMV) and the ELD would automatically record the remaining information, such as driving time, odometer readings, and engine power up, in accordance with the regulations and the technical standard. Other provisions will require the motor carrier to create distinct accounts for each driver within the ELD’s operating system so that their hours can be tracked independently. At the end of a day, drivers will be required to certify the accuracy of their record of duty status and the motor carrier will have to verify and retain those records. The integrity of the ELD system is protected through anti-tampering provisions.

Supporting Documents

The proposed regulations are intended to be harmonized with the U.S. rules for supporting documents that are used by the motor carrier and enforcement officers to validate the accuracy of the driver’s record of duty status. The current regulations require the motor carrier to retain all documents that could be required by enforcement officials to assess compliance. Transport Canada has advised that the “current provisions come with significant costs to collect, distribute, organize and retain the wide variety of documents needed to meet these requirements.” The amended provisions for supporting documents would apply to all motor carriers and drivers, including those that would continue to maintain a paper-based daily log. The new rules standardize the types of supporting documents into five separate categories: bills of lading, dispatch records, expense receipts, electronic mobile communication records and payroll records.

The provisions have been amended to mirror the U.S. provisions and limit the number of supporting documents that must be collected and retained to eight for each driver’s work day.
The new rules will also clarify the information that is required to appear on each supporting document, such as the driver’s name and location, the date and the time of day. If the driver retains more than eight supporting documents during one day, the motor carrier must retain at least eight of the documents, including those supporting documents that contain the earliest and last time indications for the day. Where the driver records fewer than eight supporting documents in one day, then those supporting documents must contain at least the driver’s name and location and the date. When there are more than eight documents retained in one day, each of the saved documents must include the time to which the document pertains.

Forwarding of Records By Driver to Motor Carrier

The proposed regulations establish separate provisions for the forwarding by the driver to the motor carrier of the paper records of duty status and of the records of duty status that are generated by the ELD. The requirements for the forwarding of ELD records and accompanying support documents are intended to be harmonized with the U.S. rules and require that the driver send both to the motor carrier within 13 days after their creation. The requirements for paper records of duty status remain the same as they are under the current regulations. Paper records of duty status may be forwarded by mail, and in recognition of the extra time that is needed for them to reach the motor carrier, the drivers will continue to have 20 days to send their records of duty status and supporting documents to the home terminal out of which they are dispatched.

Transport Canada states that the draft regulations are harmonized to the U.S. technical specifications and should result in CMVs needing only one ELD to be compliant in both countries. There are some differences (*5).

“As well the proposed amendments mirror the U.S. rules for supporting documents, such as fuel receipts and bills of lading, allowing for both Canadian and U.S. international motor carriers to retain the precise number and type of documents to remain compliant with rules in both countries. By aligning with the requirements in the United States, the strengthened and streamlined daily logging requirements in Canada should not result in any impediments to trade.”

The proposed regulations would not mirror the U.S. requirement for vendors of ELDs to self-certify and register their devices like in the U.S. Final Rule. Transport Canada believes that vendors will make every effort to ensure that their devices are compliant, that the marketplace will quickly identify any issues with the devices and that the vendors will quickly rectify any problems that are uncovered. “Self-certification by the vendors would not be expected to add any value in terms of ensuring compliance by the vendor.” However, in order to assist Canada’s motor carriers, Transport Canada is considering the establishment of a website that would include the names of ELD suppliers serving the Canadian market that are also prepared to attest that their products meet the provisions of the technical standard.

Commentary on the draft regulations can be made to Transport Canada within 60 days of December 16th, 2017. Submissions must be sent to:
Andrew Spoerri
Senior Research Analyst
Motor Vehicle Safety Directorate Transport Canada
330 Sparks Street, 9th Floor Ottawa, Ontario
1A 0N5

 [MH1]Rui, I see 3 exemptions here as this is written. Maybe just need a comma after the word “Regulations”?