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 FRANÇAIS  

December 2011

Compliance with the Charter of the French Language in the posting of trade-marks used as business names in Quebec

On November 13 of this year, the Office québécois de la langue française launched a communication campaign aimed at bringing corporations to comply with the Charter of the French Language (RSQ, c. C-11). These measures primarily target those that use a trade-mark in their business name with a word or expression taken from a language other than French.

Trade-mark vs. business name
Some corporations use their registered trade-mark as a business name. The Office notes that such usage does not exempt them from respecting the Charter of the French Language. Section 25, paragraph 4 of the Regulation respecting the language of commerce and business (R.R.Q., 1981, c C-11, r 9, s 25) states "On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French: a recognized trade-mark within the meaning of the Trade-marks Act (R.S.C., 1985, c. T-13), unless a French version has been registered". However, this same trade-mark used as a business name will be subject to section 27 of the same Regulation (R.R.Q., 1981, c C-11, r 9, s 27): "An expression taken from a language other than French may appear in a firm name to specify it provided that the expression is used with a generic term in the French language". Remember also that section 63 of the Charter of the French Language specifies that a corporation's name must be in French.

Correcting signs and posters using a generic expression
Trade-marks used as a business name do not need to be translated to comply with the Charter. It is one solution, of course, but they can also be accompanied by a descriptive expression (generic) or slogan describing the products or activities. Here are a few examples of ways to comply with the Charter for the trade-mark Daily Living®:

Addition of a descriptive term (generic): Ameublement Daily Living

Addition of a slogan: Daily Living, pour un décor au goût du jour

French version of the trade-mark: Les Beaux Jours

Types of signs and posters and application
This new rule does not apply exclusively to new businesses but to all businesses established in Quebec, including those that already have a francization certificate. Although the law provides for fines of up to $20,000 for a first offence, the Office seems to have opted for a more flexible approach by offering a financial support program to correct signs and posters with financial aid of up to $50,000 for some corporations.

"Notre démarche est basée sur la collaboration et non sur la confrontation" states Ms. Louise Marchand, President and General Director of the Office québecois de la langue française. It remains to be seen if the businesses affected will feel concerned by the measures and if they will respond to the call for francization.

The Canada Not-for-profit Corporations Act comes into force!

Part II of the Canada Corporations Act (R.C.S., 1970, c. C-32) "Part II", in effect since 1917, gave way October 17 to the new Canada Not-for-profit Corporations Act (S.C. 2009, c.23) "NFP Act". After numerous failed attempts ending in dissolutions of Parliament, the NFP Act is now in effect. Although its arrival may have been imminent, it should be noted that the legal community was notified less than five days before it came into effect.

The NFP Act aims to make the rules and procedures associated with the incorporation and existence of not-for-profit organizations simpler and more flexible. Among other things, the tedious production of letters patent is now a thing of the past. Instead, forms are now available for all potential transactions, from incorporation to dissolution.

As Corporations Canada's website provides comprehensive information in this regard, this article aims to highlight only a few aspects of this new legislation.

Terminology
The French version of the new act now uses the term "organisation" rather than "corporation."

Transition from "Part II" to the "NFP" mandatory
Not-for-profit corporations have until October 17, 2014, to file Articles of Continuance and new by‑laws in accordance with the NFP Act. No government fees will be charged for this continuance.

Corporations can keep their name. However, the continuance may also be an opportunity to change their name. A NUANS report is then required, unless the corporation opts for a numbered name. If you need a NUANS report or any information regarding name searches, our team is here for you.

All corporations that do not file Articles of Continuance will be considered inactive and will be dissolved. However, it will be possible to file an application for revival under the NFP Act.

Such dissolution could have unwanted impacts on registered charity organizations. We strongly recommend consulting the Canada Revenue Agency's Charities Directorate if you have any questions in this regard. 

Please note that despite the transition from one act to the other, corporations keep the same business number (BN) issued by the Canada Revenue Agency.

Revising and filing by-laws
Corporations governed by Part II will need to revise their current by-laws to comply with the new NFP Act. A template for these by-laws will be available shortly from CRAC (fees applicable).

Whether for a continuance or a new incorporation under the NFP Act, by-laws must be filed with Corporations Canada within 12 months of their approval by the members of the corporation. Corporations Canada will neither review nor approve them. The aim of this requirement is simply to make the by-laws available to the public.

The incorporation made easier and faster
Incorporating an organization is definitely simpler with the new NFP Act. Indeed, rather than filing letters patent and sworn statements, the process now consists in submitting the Restated Articles of Incorporation form, the Initial Registered Office Address and First Board of Directors form and the NUANS report, where applicable. The government fees for incorporation are $250.

The process is also much faster than the time when letters patent were used: the standard of service is now 5 business days rather than 25.

Applications can be sent to Corporations Canada by mail, fax or email. Accordingly, originals are  not required for filing purposes. However, online filing is not possible. Of course, CRAC can help you file and revise your documents and reserve a specific date for your certificates.

1234567 CANADA FOUNDATION
New! This is now a plausible name for a corporation under the NFP Act. Indeed, corporations can now have a numbered name followed by one of the following terms: "Association", "Center", "Centre", "Fondation", "Foundation", "Institut", "Institute" or "Society".

New transactions possible
Changes, such as amalgamations and continuances (import and export), are now permitted under the NFP Act. Forms have been created for all of these transactions. The correction and cancellation of articles is also allowed.

Annual reports
Corporations must complete and file their annual report (form 4022) with Corporations Canada within 60 days of their anniversary date, i.e., their incorporation, continuance or amalgamation date, subject to a $40 fee per year. Here, "continuance date" effectively means the date of transition to the NFP Act. The anniversary date then becomes their date of continuance under the new act. As well, the annual report now requires that the corporation indicate whether or not any solicitation took place.

For those not yet continued…
Please note that it is still possible for corporations still governed under Part II and accordingly that have not yet filed their Articles of Continuance to file additional letters patent or applications for ministerial approval. Of course, this will no longer be possible once the corporation has been continued under the new act.

So we are now at the start of a countdown... The some 25,000 corporations governed by Part II will have to be continued under the new NFP Act by October 17, 2014, to avoid being dissolved. Certainly, practitioners will not miss drafting letters patent!

Please feel free to contact our team for any information on this topic: 514-861-2722 / 1-800-361-5744 / crac@crac.com

Continuing a Quebec charter under a different jurisdiction: technicalities that you need to know!

Since February 14 of this year, it is possible to continue a Quebec corporation under another jurisdiction (Business Corporations Act, RSQ, c S-31.1, s 297 to 303). But do you know all of the steps (and their subtleties) involved in such a transfer?

First of all, you have to get an authorization to continue from the Quebec Enterprise Registrar (REQ). This authorization cannot be requested directly on the REQ's website—an RE‑513 paper form must be used. This form is available from our website [French only]. It should be noted that the date of authorization will be that on which the authorization is issued. No specific date can be requested.

Once this form has been filled out and filed with the REQ, you will get a Certificate of Authorization to Continue, and this document will appear in the "Documents conservés" section [French only] of the Quebec register. Then, you will need to transmit your application for continuance to the importing authority along with your authorization issued by the REQ or written confirmation that such authorization was obtained, depending on the rules of the importing jurisdiction. It should be noted that no expiration date is applied to the authorization to continue. However, CRAC suggests confirming with the importing authority the validity of an authorization dating back longer than six months before submitting your application. The relevant excerpts of the exporting jurisdiction's legislation as well as a legal opinion confirming that exporting is permitted under this law may also be required.

Interesting fact: if the importing authority is Corporations Canada, you do not need to file the relevant excerpts from the law or a legal opinion. In fact, CRAC has learned that Quebec will soon become an officially preapproved province and that these documents are already no longer required.

Once the continuance is accepted, the importing authority should declare the change to the REQ. However, communication times between the two authorities can sometimes take weeks, and it is possible for the corporation to transmit the Certificate of Continuance to the REQ directly to complete the file more quickly. The REQ will then issue a Certificate of Discontinuance. This latter certificate will bear the same date as the Certificate of Continuance from the importing authority.

In addition, it will not be necessary to reregister your corporation in Quebec because it will remain registered and active following the Certificate of Discontinuance. Consequently, the Quebec enterprise number (NEQ) will stay the same.

Finally, new tax numbers will not be issued by Revenu Québec. However, Revenu Québec still asks that they be notified of the discontinuance. Revenu Québec mentioned that such a notice could temporarily be required, since exporting a Quebec charter is new for them, too.

The CRAC team has developed expertise in exporting Quebec charters. They can help you with each and every step of the process!

New on Incoweb!

Over the past few months, you probably noticed all of the new things on Incoweb! In particular, we have added the initial legal organization of corporations, Articles of Amendment and the translation of Information Statements in Quebec.

Initial legal organization of businesses (Minute Plus service)
We recently launched our Minute Plus service on Incoweb. No more wasting time filling out your initial resolutions, issuing share certificates, printing everything, gathering your documents, etc. With this new service, your minute book will be complete when it arrives at your office. All that will be left to do is hand everything over to your client! We are also offering a $10 introductory discount on our fees for this service. You will be saving time and money! (Please note that the service is exclusive to jurists).

Provincial Articles of Amendment
Also new on Incoweb! This new service allows you to amend the share capital, restrictions and corporate name of your Quebec corporation. Once again, an introductory discount of $10 off service charges is currently offered!

Translation of Quebec Enterprise Register information statements
Do you have a client who is not fluent in French? You can now order an English translation of information statements through Incoweb! You can get an in-house CRAC translation in .pdf format for your Anglophone clients' reading pleasure!

These new services come in addition to the numerous changes made to Incoweb since the start of the year. In fact, we had to harmonize Incoweb with the new Business Corporations Act (RSQ, c S-31.1). We also added new standard provincial schedules to help you take full advantage of the benefits of the new act and give you more latitude. Finally, since the REQ has decided to no longer distribute its paper forms, we have added CRAC forms on Incoweb to facilitate your transactions.

We invite you to keep an eye out for many other new options to come in the next few months.

Incorporation of professionals – handy tools updated

We recently completely updated our summary table of the various conditions applicable to professions permitted to incorporate [French only].

Our standard schedules for professional corporations have also been updated and are available on Incoweb, free of charge.

Note that in the last year, new professions have been added to the list of professions permitted to incorporate. Consequently, chartered administrators; certified translators, terminologists and interpreters; certified management accountants; and psychologists can now practise their profession as a corporation.

Over the coming year, we will keep a close eye on other professions that may get the right to practise as a corporation. As published in a draft regulation, Architects, occupational therapists and chartered appraisers are the most likely to get this in the near future.

Please follow this interesting link to a table on the web site of the Office des professions, confirming the status of various professions regarding the practice of the profession as corporations [French only].

2011 babies

At the start of the year, Madeleine Cadieux, our Manager of Corporate Services, became a first-time mother. She gave birth to little Charlotte on February 7.

On June 30, our programmer-analyst Unik Bergeron and his spouse welcomed their third child, a little boy they named Fanek.

And then, in the middle of the summer, Julie Tremblay, our Human Resources Representative, also became a happy new mom. Her son Alex was born on July 31.

Welcome back Joanna Jacobson!

After being gone for two and a half years to give birth to her two daughters, Victoria and Julianna, Joanna Jacobson is back at CRAC. Lively and full of energy, she joyfully accepted the new projects awaiting her return. Indeed, in addition to returning to the helm of the registration and research services department (Information on businesses, Bank Act, RDPRM and Registre foncier). We sure missed her!

 
CRAC

1080 Beaver Hall Hill,
Suite 1717
Montreal (Quebec) Canada
H2Z 1S8
Tel: (514) 861-2722
Toll free: 1-800-361-5744
Fax: (514) 861-2751
E-mail: crac@crac.com

Notice: The information contained in INFO-CRAC® is of a general informative nature and in no way constitutes nor should it be construed as a legal opinion. INFO-CRAC® is published for the benefit of our clients. Please submit any comments in writing to crac@crac.com