Registering a business name or extra-provincial corporation in Ontario

Ontario splits these rules across three statutes and one online registry, and a sale can touch all four. The Business Names Act covers names used in business. The Corporations Information Act covers the returns a corporation files, including an extra-provincial corporation that begins carrying on business in Ontario. The Extra-Provincial Corporations Act covers licensing for some corporations from outside Ontario. Filings go through the Ontario Business Registry, which the province says handles over 90 transactions online, including registering and incorporating. This guide describes what those sources say and where the deal-specific questions arise. It covers Ontario only. Other provinces use different statutes and registries.

What the Business Names Act requires

Section 2 of the Business Names Act sets three rules. A corporation may not carry on business or identify itself to the public under a name other than its corporate name unless that corporation has registered the name. An individual may not do so under a name other than their own unless the individual registers it. Persons associated in partnership may not do so unless all of the partners register the firm name. The Act has exceptions, including one that lets partners use a name made up of the partners’ names. Whether a given trade name is caught is a question to put to your lawyer.

Keeping a registration current

The Business Names Act makes a registration effective for five years from the date the Registrar accepts it. Under section 5 of the Business Names Act, a registrant may renew before it expires, and may renew within sixty days after it expires on paying the late-renewal fee. If information in a registration changes, section 4 of the Business Names Act requires an amended registration within fifteen days after the change, subject to the exceptions in section 4.1. A buyer should therefore ask for the registration itself, check its expiry date, and ask whether any change, such as a new address or partner, has gone unreported. A lapsed or stale registration is a question for the seller before closing.

Extra-provincial corporations: the return

Under section 3 of the Corporations Information Act, an extra-provincial corporation, other than one in a class the regulations exempt, that begins to carry on business in Ontario must file an initial return. The Corporations Information Act requires the filing within 60 days after it begins to carry on business in Ontario, subject to the exceptions in subsections 3(3) and 3(4). Where a corporation, other than one required to obtain a licence under the Extra-Provincial Corporations Act, must register a name under the Business Names Act, the return has to be filed before the name is registered. Section 4 of the Corporations Information Act then requires a notice of change within 15 days of each change in the filed information, again with exceptions.

Extra-provincial corporations: the licence

The Extra-Provincial Corporations Act sorts extra-provincial corporations into classes in section 2. Under section 4, a corporation in class 1 or 2 may carry on business in Ontario without a licence, subject to that Act, the Corporations Information Act and any other Act. No corporation in class 3 may carry on any of its business in Ontario without a licence, and no representative or agent may do so for it unless the corporation holds one. Which class your buyer or target falls into is a legal question. Ask counsel to confirm it from the Act rather than guessing.

What a purchase changes

Treadstone Law, an Ontario firm, writes that in an asset purchase the seller’s existing business name registration does not automatically transfer to the buyer, and that a buyer who continues under the seller’s trade name needs to register it in the buyer’s own capacity. Treat that as a point to confirm with your own lawyer, because it depends on how the deal is structured. The same article says that where a corporation already operated under a registered name, the registration generally continues to belong to that corporation when its shares change hands, though you should confirm it is current and accurate. Either way, search the registry first. Read how to check a corporation’s good standing before you rely on a registry result.

Working through the Ontario Business Registry

The province says the Ontario Business Registry allows businesses and not-for-profit corporations to complete over 90 transactions online, and that information on entities registered before its launch on October 19, 2021 was migrated from the previous system. Most of the information filed there, such as registered office or other address information, goes on the public record and can be searched under the business statutes. The registry also publishes notices of filing requirements, which are guides for registering a business name, partnership or extra-provincial company, so read the current notice for your filing before you submit.

• Ask whether the business uses any name other than the owner’s own or the corporate name, and get the registration for each.
• Check each registration’s expiry date and whether any change has gone unreported.
• For a corporation from outside Ontario, ask when it began carrying on business here and whether its initial return was filed.
• Ask counsel which class of extra-provincial corporation applies and whether a licence is required.