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Written by Connor Heuver
JD Candidate | UCalgary Law Starting a digital business in Canada requires careful planning and consideration of various factors. Some important considerations to keep in mind include:
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Written by Connor Heuver
JD Candidate 2023 | UCalgary Law Contract law is important for entrepreneurs in Canada because it provides a framework for creating legally binding agreements and protecting their interests. Understanding and following contract law can help entrepreneurs avoid disputes and ensure that their agreements are enforceable in court. In Canada, contract law is governed by both common law and statutory law. Common law is the body of law developed by the courts, while statutory law is the law created by the legislature. One key principle of contract law in Canada is the requirement for a "meeting of the minds," or mutual assent, between the parties. This means that both parties must understand and agree to the terms of the contract. Additionally, contracts must typically be supported by consideration, or something of value exchanged by the parties. Another important principle of contract law in Canada is the concept of "good faith" which is implied in all contracts. This means that both parties must act in a fair and honest manner and not use the contract to take advantage of the other party. Canadian law also recognizes the principle of "frustration of contract" which allows parties to be released from their obligations under a contract if an unforeseen event renders the contract impossible to perform. Entrepreneurs should also be aware of the various types of contracts and their legal implications. For example, express contracts are agreements in which the terms are explicitly stated, while implied contracts are agreements in which the terms are inferred from the parties' actions. In case of disputes arising from contracts, it is generally resolved through the court system, although mediation and arbitration are also used as alternative dispute resolution methods. In summary, contract law is essential for entrepreneurs in Canada because it provides a framework for creating legally binding agreements, protecting their interests and ensuring that agreements with customers, suppliers, employees, and other parties are enforceable in court. Entrepreneurs should be familiar with the principles of contract law in Canada and seek legal advice when drafting and entering into contracts. Selling Shares of Your Successful Business and Accessing the Lifetime Capital Gains Exemption4/13/2023 Authored by Jack Kuzyk
JD Candidate 2023 | UCalgary Law As entrepreneurs in Canada, it is important to understand how to arrange your affairs to minimize the amount of tax payable by utilizing the tax tools provided in the Income Tax Act (“ITA”).[1] Successful business owners may wish to sell their shares in a private corporation, but what are the tax implications upon the sale of the appreciated shares? This blog post will provide a brief overview of the lifetime capital gains exemption (“LCGE”) and how entrepreneurs can use this generous tax planning tool to decrease their tax payable. What Is The Lifetime Capital Gains Exemption? As one of the most important tax policies for entrepreneurs and small business shareholders, the LCGE is a tax incentive that can, within limits, apply at the tax payer’s option to exempt all or part of the taxable capital gains realized when disposing of qualified small business corporation shares (“QSBCS).[2] Essentially, it acts as an economic incentive to help raise investments in small businesses, as entrepreneurs and prospective investors can potentially pay less tax when they eventually sell their shares. Upon such disposition,[3] the LCGE may be used against the tax payer’s taxable capital gain, eliminating some or all of the taxable capital gain. While calculating taxable capital gain is beyond the scope of this blog, it is important to note that taxable capital is 50% of the capital gain realized when disposing of shares.[4] How Much Is the Lifetime Capital Gains Exemption? The LDGE amount changes annually and is indexed to inflation. For dispositions in 2022 of QSBCS, the LCGE limit has increased to $913,630.[5] In comparison to 2021, this increase of $21,412 provides tax payers with a greater opportunity to save when disposing QSBCS that have accrued in value. How To Qualify? What Are Qualified Small Business Corporation Shares? While acting as an economic incentive to help raise the level of investment in small businesses, not everyone meets the criteria to qualify for the LCGE. To access the LCGE, the tax payer must meet be a Canadian resident at the time of the disposition. Moreover, it is imperative that the shares qualify as QSBCS. In order to constitute QSBCS, must meet several conditions under subsection 110.6(1) of the Income Tax Act:[6]
Conclusion: In Summary, the LCGE is a valuable tool for entrepreneurs to reduce their tax liabilities when selling QSBCS. By understanding the criteria for accessing the LCGE and using it strategically, entrepreneurs can potentially save up to the full amount of the LCGE. For more information regarding eligibility under the LCGE, or maximizing tax savings while staying compliant with Canadian tax laws, please contact the BLG Business Venture Clinic. [1] Income Tax Act, RSC 1985, c 1, s 110.6(2.1) [ITA]. [2] Bryce C. Tingle, Start-up and Growth Companies in Canada: A Guide to Legal and Business Practice, 3rd ed (Toronto: LexisNexis Canada Inc., 2018) at 82-84. [3] ITA, supra note 1, s 248 “disposition”. [4] ITA, supra note 1, s 38(a). [5] Canada Revenue Agency. “T4037 Capital Gains 2021.” Government of Canada, 18 January 2021, https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/t4037/capital-gains.html. [6] ITA, supra note 1, s 110.6 [7] ITA, supra note 1, s 125(7). Written by Jack Kuzyk
JD Candidate 2023 | UCalgary Law Bankruptcy is a difficult process that can be overwhelming for both individuals and businesses. Provisions in the federal Bankruptcy and Insolvency Act (“BIA”) and the provincial Personal Property Security Acts make it difficult for creditors to seize and retain their assets for materially less than their fair market value.[1] Upon bankruptcy, the BIA provides a distribution scheme to determine creditor priority when administering the bankrupt’s estate (i.e., the debtor company assets).[2] The estate, however, generally holds an insufficient amount of assets for creditors to fully recover. Further, a stay of proceedings is automatically imposed on all claims against the bankrupt and their property.[3] As a means to maintain control over the distribution of the assets and property of the bankrupt, the stay operates to prohibit creditors from commencing any further legal action against the debtor.[4] From a creditor perspective, this mechanism severely limits repayment by inhibiting enforcement of debt collection. In Canada, however, directors of a corporation are subject to potential personal liability – e.g., unpaid taxes, environmental damage and unpaid employment wages. Director liability provides a legal tool for creditors to increase their reimbursements. Under the Canadian Business Corporations Act (“CBCA”), director duties include both the duty of loyalty, and duty of care.[5] There is, however, growing recognition that directors of an insolvent corporation owe a duty of care to the corporation’s creditors. Although this duty does not rise to the level of a fiduciary duty,[6] the directors, in discharging their fiduciary duty of loyalty and determining the best interests of the corporation,[7] may need to consider the interests of shareholders, employees, suppliers, creditors, consumers, governments and other stakeholders.[8] The interests of these different constituencies may conflict (e.g., debtholders versus equity holders where the corporation is in the vicinity of bankruptcy[9]) and the directors, in fulfilling their fiduciary obligation to act in the best interest of the corporation, are required to balance these competing interests. With very little guidance on how to perform this balancing act, this blog post will provide a brief discussion on whether directors are required to shift their primary focus to the creditors once the corporation approaches the possibility of insolvency. Creditors of a Corporation under the BIA: As a preliminary matter, section of 2 of the BIA defines “creditor” as a person having a “claim provable as a claim”.[10] Sections 121 to 123 of the BIA define what constitutes “claims provable”, including certain debts and liabilities incurred by the bankrupt corporation.[11] To be granted creditor status, including the right to participate in the distribution scheme prescribed under the BIA, onus is on the creditor to prove its status under the BIA. Moreover, creditors are separated into different constituencies reflecting various levels of priority under the bankruptcy regime. For purposes of this blog, the ensuing discussion assumes all creditors are unsecured and collecting inside the bankruptcy process. Notably, however, there are instances where creditors may strategically force a corporation into bankruptcy as their status inside bankruptcy results in them receiving a greater return than they would otherwise receive outside of bankruptcy.[12] From both debtor and creditor perspective, it is imperative to understand creditor status and priority ranking. Peoples: Fiduciary Duty Not Owed To Creditors Pursuant to the Supreme Court of Canada (the “Court”) in Peoples Department Stores Inc. (Trustee of) v Wise,[13] the directors of a corporation, even when facing insolvency, do not owe a fiduciary duty to the creditors of a company.[14] In Peoples, the trustee in bankruptcy, representing the creditors of the bankrupt company (here, Peoples), commenced an action against the directors of Peoples, alleging that its directors breached their fiduciary obligations to its creditors. The claim against the directors was not pursued under the oppression remedy nor a derivative action. In examining the nature of a director’s duties under Canadian law in the context of an insolvency proceeding, the Court in Peoples held that “the various shifts in interest that naturally occur as a corporation’s fortunes rise and fall do not, however, affect the content of the fiduciary duty under s. 122(1)(a) [CCBA – i.e., duty of loyalty]… At all times, directors and officers owe their fiduciary obligation to the corporation. The interests of the corporation are not to be confused with the interests of the creditors or those of any other stakeholders… In using their skills for the benefit of the corporation when it is in troubled waters financially, the directors must be careful to attempt to act in its best interest by creating a “better” corporation, and not to favour the interests of any one group of stakeholders.”[15] In other words, while broadly describing the duty of care, the Court, while limiting the duty of loyalty to the corporation itself, specifically excluded creditors from the scope of a director’s fiduciary duties and found director fiduciary duties do not change when a corporation is in the nebulous “vicinity of insolvency”.[16] Notably, the Court reasoned that creditors have the broad oppression remedy available to protect their interests against prejudicial conduct of director(s) under s.241 of the CBCA. Thus, the Court found no need to extend the fiduciary duty of loyalty imposed on directors to include creditors.[17] Further, the Court in Peoples,[18] and later re-affirmed in BCE Inc v 1976 Debentureholders,[19] severely restricted director liability by affirming the business judgment rule. Effectively, the courts will not intervene in the substantive decisions of directors and impose director liability where directors’ decisions satisfy their procedural requirements under the duty of care. If Not, How Can Creditors Contractually Protect Themselves? Therefore, if not owed a fiduciary duty, unpaid creditors, or the trustee in bankruptcy, may use the oppression remedy to obtain judgment against the directors of a corporation under the Canadian Business Corporation Act.[20] However, as an equitable remedy, receiving standing as a “complainant” to pursue an oppression action is based on the circumstances of each case.[21] For instance, the oppression remedy may not be used by a creditor solely as a tool for debt collection. The policy rationale for its limited use is that creditors are not contractually obligated to enter into agreements with the corporation. Moreover, freedom of contract enables creditors to price the risk of the corporation’s failure into the price (e.g., higher interest on a loan or higher cost for supply of services), use a debt instrument,[22] or impose conditions that withstand bankruptcy and provide the creditor with priority protection. For example, the creditor may require a charge against property of the debtor as security for the debt due to the creditor. Consequently, the creditor has a secured interest that ranks above unsecured creditors in the distribution scheme.[23] Moreover, it may not be affected by the stay of proceeding.[24] Conclusion: While the pendulum does not swing entirely to the creditors, directors of a corporation experiencing financial difficulties should, and should be seen to, maintain a high degree of diligence and care regarding the dealings of the corporation. While there is no bright-line test in this regard, the interests of creditors is a factor. In particular, when the threat of insolvency looms over the company’s future. The foregoing only touches the surface of this issue. For further information, please contact the BLG Business Venture Clinic. [1] Bryce C. Tingle, Start-up and Growth Companies in Canada: A Guide to Legal and Business Practice, 3rd ed (Toronto: LexisNexis Canada Inc., 2018) at 79 [Tingle]. See also, Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 247 [BIA] and Personal Property Security Act, RSA 2000, c P-7, ss 60,62. [2] Supra note 1, s 136. [3] BIA, supra note 1, s 69. [4] BIA, supra note 1, s 69.3(1) [5] Canadian Business Corporations Act, RSC 1985, c C-33, ss 121(1)(a) and (b), respectively [CBCA]. [6] Peoples Department Stores Inc (Trustee of) v Wise, [2004] SCJ 64, [2004] SCR 68 [Peoples]. [7] CBCA, supra note 5, s 122(1). [8] CBCA, supra note 5, s.122(1.1); Peoples, supra note 6, at para 42. [9] Tingle, supra note 1 at 79. [10] Supra note 1. [11] Supra note 1. [12] Stephanie Ben-Ishai & Thomas G.W. Telfer, Bankruptcy and Insolvency Law in Canada: Cases, Materials, and Problems, (Toronto: Irvin Law, 2019) at 321. [13] Supra note 6. [14] Peoples, supra note 6 at para 1. [15]Supra note 6 at paras 43-47. [16] Peoples, supra note 6 at para 46. [17] Peoples, supra note 6 at paras 48-53. [18] Peoples, supra note 6, at para 67. [19] [2008] SCJ No 37, [2008] 3 SCR 560 at para 112 [BCE]. [20]Olympia and York (2001), 28 CBR (4th) 294; CBCA, supra note 5, s 2(d). [21] First Edmonton Place Ltd v 31588 Alberta Ltd (1989), 45 BLR 110 (Alta CA); Sidaplex-Plastic v Elta Group Inc (1998), 111 OAC 106 (CA). [22] Tingle, supra note 1 at p 79. [23] BIA, supra note 1, ss 136 and 2 “secured creditor”. [24] BIA, supra note 1, s 69.3(2). Authored by Parker Easter
JD Candidate 2023 | UCalgary Law Co-founder, ReNu Hygienics In January of 2022, Calgary-based tech-oriented community builder, Zachary Novak, released a comprehensive letter on the state of Alberta’s technology ecosystem entitled “The Alberta Tech Ecosystem: The Good, the Improving and the Tough Realities.”[1] Subsequent to reviewing his thorough account, I felt significantly more informed on our province’s tech balance sheet. This article provides a snapshot of his snapshot: the high-points broken down into our province’s tech strengths, challenges, and opportunities. Strengths:
Opportunities:
Read Zachary Novak’s complete and comprehensive analysis of the Alberta tech ecosystem here: https://fmlstudios.substack.com/p/the-alberta-tech-ecosystem-the-good?r=2eqc9&utm_campaign=post&utm_medium=web. [1] Zachary Novak, The Alberta Tech Ecosystem: The Good, the Improving and the Tough Realities, FML Studios, online: https://fmlstudios.substack.com/p/the-alberta-tech-ecosystem-the-good?r=2eqc9&utm_campaign=post&utm_medium=web. [2] This figure rose to an approximate $571M raised by the end of 2021. |
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