Canada: Coup D'accélérateur Sur La Modernisation Des Lois Sur Les Entreprises De L'Ontario

Le 12 mai 2020, l'Ontario a édicté le projet de loi 190, Loi de 2020 sur les mesures en réponse à la COVID-19 et les réformes visant à moderniser l'Ontario (le « projet de loi 190 »), afin d'aider les sociétés à se conformer à leurs obligations légales dans le respect des lignes directrices sur la distanciation physique. Outre la remise en vigueur des dispositions initialement énoncées dans un décret d'urgence autorisant les sociétés à tenir des assemblées virtuelles et à reporter leurs assemblées annuelles, le projet de loi 190 permet aux entreprises qui déposent des documents en application de diverses lois sur les entreprises de signer les documents par voie électronique, de déposer une copie d'un document au lieu de l'original et de faire leur dépôt par courrier électronique ou par télécopie au lieu de le faire en personne ou par courrier. 

Une traduction de ce billet sera disponible prochainement.

On May 12, 2020, Ontario introduced and passed Bill 190, the COVID-19 Response and Reforms to Modernize Ontario Act, 2020 ("Bill 190") to help corporations meet their legal obligations while respecting physical distancing guidelines. In addition to re-enacting provisions allowing corporations to hold virtual meetings and defer annual meetings that were first set out in an emergency order, Bill 190 enables businesses filing documents under various business statutes to sign them electronically, file copies instead of original documents, and file by email or fax instead of in-person or by mail.

A true omnibus, Bill 190 enacts a new statute, the Alternative Filing Methods for Business Act, 2020 (the "AFMA"; see Schedule 1 of Bill 190), and amends filing and signature provisions in seven business statutes: the Ontario Business Corporations Act, Business Names Act, Co-operative Corporations Act, Corporations Information Act, Corporations Act, Extra-Provincial Corporations Act, and the Limited Partnerships Act (the "Business Statutes").

Alternative Filing Methods Under AFMA

Under the AFMA, documents normally filed under the Business Statutes in-person or by mail may be filed by an alternative method that meets specified requirements. The filing methods and requirements are set out Notice MR-001 "Notice – Filing Methods and Requirements" (the "Notice"): documents and search requests may be filed electronically by email ( companiesfilings@ontario.ca ) and fax (416-314-0102) in accordance with the Notice until further notice is provided.    

Legible electronic copies must be filed using the prescribed, required or approved form together with any required accompanying documents and a cover letter that includes specified information. Documents submitted by email and fax will be handled the same way as documents submitted by mail, and subject to the same service standards. The Business Statutes continue to govern the filings in all respects, including effective dates, and filing by email or fax will not result in immediate fulfillment. See the Notice for the full requirements and payment processes.

Electronic Signatures Under AFMA

Documents that require a signature, however filed, may be signed by an electronic signature that satisfies requirements established under the Business Statutes. These requirements are also set out in the Notice. In addition to meeting the definition of an electronic signature under the applicable Business Statute¹ an electronic signature must meet two requirements:

• The full name of the signatory must be legible and set out in the document on the signature line. If this is not possible the full name may be set out in another field together with the information required for that field.
• The document must indicate that it has been signed by an electronic signature. The examples in the Notice include: Jane Doe or "Jane Doe" by electronic signature/e-signature; a cursive font or computer-generated electronic signature if the full name of the signatory (Jane Doe) is also set out on the signature page; a cover letter to a document stating that the document has been signed by electronic signature if the name of the signatory is set out on the signature page. A copy of a manual signature does not require this indication.

The records related to an electronic signature (e.g. an email) are not filed, but must be kept with a copy of the properly executed version of the signed document (in paper or electronic format) at the filer's registered or head office or, in the case of a limited partnership, at its principal place of business in Ontario or with its attorney and representative. This copy and the related records must be provided to the Director or Registrar under a Business Statute if requested.

Filing Copies of Documents

A requirement to file an original notice or document under a Business Statute can now be satisfied by filing a copy that meets the requirements established under the particular statute. These requirements are also set out in the Notice: a legible copy of any document is permitted – this includes legible copies of articles, applications (including for letters patent and supplementary letters patent and declarations) and applies whether the document is filed in-person, by mail, email, or fax. Legible and notarial copies of certified copies of court orders will also be accepted.

The Temporary and Permanent Aspects of the Changes

Bill 190 contains a combination of temporary and permanent legislative amendments related to electronic documents. This is primarily because the Bill 190 amendments originate with changes first set out in the Cutting Unnecessary Red Tape Act, 2017 ("CURTA") but never proclaimed in force. Certain of the Bill 190 amendments replace the equivalent provisions in CURTA immediately and will remain in force when CURTA is proclaimed (those allowing copies to be filed, for example); others operate until CURTA comes into force, at which time a CURTA provision as revised by Bill 109 will take effect. AFMA provides that it will be repealed on a date proclaimed by the Lieutenant Governor.

Together the Bill 190 amendments and the Notice (which is subject to change or revocation by further notice) provide a trial run for future electronic dealings that have been anticipated since CURTA received Royal Assent in 2017.

Commissioning Affidavits and Notarizing Documents Virtually

Aspects of Bill 190 facilitate physical distancing objectives when commissioning affidavits and notarizing documents.  Schedule 4 of Bill 190 amends the Commissioners for Taking Affidavits Act to provide for circumstances where affidavits or declarations can be administered without being in the physical presence of the person swearing the affidavit or making the declaration. Similarly, Schedule 13 of Bill 190 amends the Notaries Act to provide for circumstances in which the notary public need not be in the physical presence of the person who is having items notarized. In addition, it will not be necessary for the notary public to affix his or her seal in order to validate any oath, affidavit or declaration. The circumstances where physical presence will not be required for commissioning affidavits and notarizing documents will be set out in regulations, which are not yet available. In the meantime, various provincial Law Societies have provided guidance in the form of best practices for virtual commissioning of affidavits and notarizing of documents. 

Other Amended Statutes

Bill 190 amends a number of other statutes, including:

• The Succession Law Reform Act to permit electronic beneficiary designations.
• The Condominium Act to re-enact provisions first set out in Regulation 107/20 allowing condominium corporations to hold virtual meetings and defer annual meetings.

The Not-for-Profit Corporations Act, 2010 (which is not yet in force) to make changes similar to those made to the Business Statutes.

Footnote

1 An identifying mark or process that is, (a) created or communicated using telephonic or electronic means, (b) attached to or associated with a document or other information, and (c) made or adopted by a person to associate the person with the document or other information, as the case may be.

Originally published 14 Mai 2020

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