Registering an extra-provincial company in Newfoundland and Labrador

Newfoundland and Labrador registers companies from other jurisdictions under its Corporations Act, RSNL 1990, c. C-36. The Act calls them extra-provincial companies. For someone buying or selling a business run by such a company, the Act raises a practical question: is the company registered in the province, and if not, what follows? The provincial Registry of Companies says all corporations operating in the province must be registered with it. This guide describes the Act’s extra-provincial provisions as they read in the House of Assembly’s online version and does not cover other provinces, whose registration rules are their own.

Who counts as extra-provincial

The Act defines an extra-provincial company as a body corporate incorporated otherwise than under an Act of Newfoundland or of the province, and it includes a federal company. An “undertaking” is a business or activity carried on by a domestic or extra-provincial company. Section 431 sets out when an extra-provincial company is carrying on an undertaking in the province: for example, where it holds title to land or an interest in land other than by way of security, or maintains an office, warehouse or place of business there. Listing under its name in a local telephone directory creates a presumption, in the absence of proof to the contrary, that it carries on an undertaking in the province.

The registration requirement

A domestic company or extra-provincial company shall not begin or carry on an undertaking in the province until it is registered (s. 433). Despite that rule, a domestic company, and an extra-provincial company registered under the former Act on January 1, 1987, are considered registered (s. 433(3)), and Part XXII does not apply to a company that carries on its undertaking on a co-operative basis within the meaning of the Co-operative Societies Act (s. 432). A company whose name appears on the registrar’s register is presumed to be registered, and one that does not appear is presumed not to be. The registrar may restrict the powers or activities of a non-federal extra-provincial company in prescribed circumstances (s. 436), and an application by a non-federal company may be referred to the Lieutenant-Governor in Council, who may order the registrar to refuse registration (s. 435).

What the application must contain

Section 438 requires a statement in the prescribed form setting out, among other particulars, the company’s name, its jurisdiction and date of incorporation, its constating instruments, the undertaking it will carry on in the province and the addresses of its head offices. The statement must come with a statutory declaration by an officer verifying the particulars, a copy of the constating instruments, the prescribed fee and a power of attorney. The power of attorney (s. 440) names an individual resident in the province to receive service of process and lawful notices.

The cost of not being registered

An extra-provincial company, other than a federal company, that is not registered may not maintain an action in a court in the province on a contract made in whole or in part within the province in the course of its undertaking (s. 452). The disability can end on registration or restoration of registration: the company may then maintain the action as though it had never been disabled, subject, after a restoration, to any conditions or court order made on it. The same section limits an assignee’s ability to sue on a debt assigned by such a company unless the company is registered while the proceeding runs, or the Lieutenant-Governor in Council orders otherwise, and that limit does not apply where the company is a judgment creditor applying to have a judgment registered in the Supreme Court under the Reciprocal Enforcement of Judgments Act. Registration or revival of registration retroactively authorizes the company’s earlier acts, except for the purposes of a prosecution of an offence under that Part (s. 449).

Keeping the registration current

A registered extra-provincial company must display its name at its head office in the province and show its name on contracts, invoices and similar documents (s. 450). Under section 451 of the Corporations Act, if its name changes, its constating instruments are altered for a fundamental change, or its objects or business are restricted, it must file certified copies within one month, and its registration is not valid 60 days after the change unless the change is filed. When it stops carrying on an undertaking in the province it files a notice, and the registrar then cancels the registration (s. 447). The Registry of Companies site has pages on extra-provincial registration, its name approval policy and annual returns.

Liens on the company’s assets

The province’s Personal Property Registry is described as a paperless electronic registry for notices of interests in personal property, such as car loans. Under the Personal Property Security Act, registration of a financing statement perfects a security interest in collateral, subject to s. 20, and it takes effect from the time a registration number, date and time are assigned. A financing statement may be registered before or after the security agreement is made or the interest attaches, so a search can show a registration made before any security agreement was signed.

• Ask whether the company carries on an undertaking in the province under s. 431 and is on the registrar’s register.
• Ask for the certificate of registration, the current power of attorney and any filed changes of name or constating instruments.
• Ask whether any contract the company wants to enforce in the province was made while it was unregistered.
• Search the Personal Property Registry on the company before paying for its equipment or vehicles; see PPSA registration for the concept.