Authored by Mercer Timmis
JD Candidate 2023 | UCalgary Law WHEN IS IT TIME TO INCORPORATE IN THE U.S.A Incorporating in the U.S.A. can be a strategic move for Canadian start-ups, as it can provide access to a larger market, more significant funding opportunities, and a more business-friendly environment. However, it is important to note that generally, incorporating in the United States is a bad idea unless you are conducting significant business in the U.S.[1] Additionally, there is serious litigation for risk for the following reasons: (i) the U.S. does not have loser pay rules (i.e., the other party pays expenses); (ii) it is easier to organize class action lawsuits; (iii) U.S. courts permit juries for civil trials; and (iv) the U.S. has 5x more lawsuits in comparison to Canada.[2] CONSIDERATIONS FOR INCORPORATING IN THE U.S.A Nonetheless, if you plan to incorporate in the U.S., there are a few key considerations. First, companies should choose their jurisdiction wisely. Typically, you will want to create a U.S. subsidiary in a favourable jurisdiction. For instance, many companies select Delaware due to its long history of promoting business-friendly policies and its establishment of a legal framework that makes it relatively easy for companies to incorporate.[3] Second, Canadian start-ups should also consider the regulatory environment in the U.S.A., including tax laws, employment laws, and intellectual property laws. When establishing a U.S. corporation, it is crucial to examine the operations of both the Canadian and U.S. companies to create a structure that reduces Canadian and U.S. tax liabilities, aligns cash flow with the business plan, and facilitates tax-efficient repatriation of profits back to Canada. It is also important to devise an effective transfer pricing strategy. However, it is important to note that this is costly for businesses because it requires the assistance of tax lawyers and accountants. Third, incorporating in the U.S.A. can open up new funding opportunities, including access to venture capitalists, angel investors, and government grants.[4] As such, it may benefit you to incorporate in the U.S. if you expect your future investors to be American. Further, a company may want to consider if government grants are only available to companies incorporated in the United States. Fourth, many Canadian start-ups are formed as Canadian-controlled private corporation (CCPC). If a CCPC carries on business in the U.S. through a permanent establishment, any income derived from that P.E. will not qualify for the small business deduction.[5] Further, if you provide services in the U.S. (even without a P.E.), the income from those services is not normally eligible for the small business deduction. As such, this income could be taxed at a higher corporate rate in Canada. Finally, before incorporating in the U.S.A., growth companies should evaluate whether there is a significant market opportunity for their product or service in the U.S.A. This can involve researching market size, competition, and customer demographics. [1] Bryce C. Tinge, Start-up and Growth Companies in Canada: A Guide to Legal and Business Practices, 3rd ed (Canada: LexisNexis Canada Inc, 2018). [2] Ibid. [3] March Kusner et al., “Should Canadian Entrepreneurs Incorporate in the United States”, (8 May 2020). [4] Voyer Law, “Revisiting ‘Should I incorporate my Canadian startup in Delaware”, Voyer Law (March 20, 2021). [5] André Perey et a., “Should Canadian entrepreneurs incorporate in the United States?”, Alberta Bar Association (22 January 2020).
0 Comments
By Sabrina Sandhu, MD FRCPC
JD Candidate 2023 (University of Calgary) Anesthesiologist and Pain Medicine Physician Clinical Assistant Professor Department of Anesthesiology, Preoperative and Pain Medicine University of Calgary This blog is about protecting what might be the highest valued asset in your company – the Intellectual Property. Intellectual property rights can confer many benefits to a business. If your idea is one of the first to market, the longer you can protect it from the competition, the more of the market share you will garner. Greater Market Share = Greater Profits Taking the appropriate legal steps to protect your intellectual property adds barriers to entry for your competition. While you are further refining your product/service, expanding your brand, establishing a loyal client base, your competition is merely trying to find a way in. Having legal protections allows you to benefit from the intellectual property and preventing others from taking value from it. What is Intellectual Property? Intellectual property can take many forms. Although it's an intangible asset, intellectual property can be far more valuable than a company's physical assets. Examples include names, designs, logos, slogans, and images. What are different types of Intellectual Property protections? Common intellectual property protections include copyright, patents, trade secrets, and trademarks. The author of a work generally owns the copyright to it. The inventor of an invention generally owns the interest in it and can patent it. (a) Copyright In general, copyright covers the rights to protect and profit from any original literary, dramatic, musical and artistic work.[1] An “original” work means that it has not been copied from another work, and has been created through some exercise of the author’s skill and judgement.[2] Copyright protects ideas when expressed in works, but does not protect ideas on their own.[3] Copyright includes the sole right to produce or reproduce a work or any substantial part of it, and the right to publish an unpublished work or any substantial part of it.[4] (b) Patents Having patents for your business’s innovations can increase the value of your company, since they provide you (or your investors/partners) with the ability to control the use of your software, which can make your business more attractive as a potential investment. To be protected, an “invention” must be a “new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter”.[5] The subject matter of an invention must be non-obvious to a person skilled in the art or science related to the patent.[6] (c) Trade Secrets Trade secrets are valuable information of a business where the value comes from the information’s secret nature.[7] These include methods, processes, or research and analysis data.[8] Unlike patents, copyrights, and trademarks, trade secrets do not have formal statutory protection.[9] Trade secret protection requires that a business keep the information secret and take measures to protect its secrecy.[10] (d) Trademarks Trademarks are signs that distinguish a company’s goods and services.[11] Holders of registered trademarks have exclusive rights to use the mark, and prevent others from making, selling, or advertising any goods or services under the trademark or a confusing trademark or name.[12] If you have an idea that you are considering protecting, please contact the Business Venture Clinic for additional information. [1] Copyright Act RSC 1985, c C-42, s 5(1)(a). [2] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 25. [3] Ibid at para 8. [4] Copyright Act RSC 1985, c C-42, s 3. [5] Patent Act RSC 1985, c P-4, s 2. [6] Patent Act RSC 1985, c P-4, s 28.3. [7] CIPO, “What is a trade secret?” (last modified 01 December 2015), online: Government of Canada <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03987.html>. [8] CIPO, “Trade Secrets” (last modified 10 July 2020), online: Government of Canada <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04318.html>. [9] Ibid. [10] Ibid. [11] CIPO, “Trademarks guide” (last modified 14 June 2019), online: Government of Canada, <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02360.html?Open&wt_src=cipo-tm-main&wt_cxt=learn>; Trademarks Act, RSC 1985, c T-13, s 2. [12] Trademarks Act, RSC 1985, c T-13, ss 19-20. By Martika Ince | JD Candidate 2024, UCalgary Law
There are several different types of classes of shares that a corporation may issue, including common shares and preferred shares. Common Shares All corporations must issue common shares. As a shareholder of a corporation, the holder of common shares has certain fundamental rights. In Alberta, these rights are governed by the Business Corporations Act (ABCA).[1] The three fundamental rights of holders of common shares in Alberta are the right to vote, the right to dividends, and the right to liquidating distributions.[2] Right to Vote Shareholders are entitled to vote on matters such as the election of directors, the approval of auditors, and major corporate decisions. Each share typically entitles the shareholder to one vote, although the articles of incorporation may provide for different voting rights for different classes of shares. The right to vote allows shareholders to participate in the decision-making process of the corporation and have a say in how the corporation is run. This right is critical in ensuring that the interests of the shareholders are represented and that the corporation is managed in a manner that aligns with the shareholders' objectives. Right to Dividends The second fundamental right of a holder of common shares in Alberta is the right to receive dividends. Dividends are payments made by the corporation to its shareholders out of its profits. The right to receive dividends allows shareholders to share in the profits of the corporation. Dividends are typically paid quarterly and may be subject to the approval of the board of directors and the availability of profits. Right to Liquidating Distributions The third fundamental right of a holder of common shares in Alberta is the right to share in the distribution of assets. If the corporation is dissolved or liquidated, the proceeds from the sale of its assets will be distributed to the shareholders. The distribution of assets is typically made in proportion to the number of shares held by each shareholder. However, since the common shareholder only has claim to the residual after all other claims against the corporation are satisfied, the volatility risk of common shares is greater than any other corporate security. Preferred Shares Preferred shares are typically non-voting shares, but have certain preferences or privileges over common shares. These preferences may include the right to receive a fixed dividend before any dividends are paid to the holders of common shares, the right to receive a specified amount upon the liquidation of the corporation before any amounts are paid to the holders of common shares, and the right to vote separately on certain matters affecting the corporation. Classes of Shares A class of shares is a group of shares in a corporation that has certain characteristics that distinguish it from other classes of shares. The three fundamental rights discussed above must be present across the classes of shares, but do not all have to be present in each class.[3] The articles of incorporation may provide that two or more classes of shares, or two or more series within a class of shares, have the same rights, privileges, restrictions and conditions.[4] It is important for businesses to understand the requirements in creating classes of shares upon incorporation. If you have questions or require additional information, please reach out to the BLG Business Venture Clinic. [1] Business Corporations Act, RSA 2000, c B-9. [2] Ibid, s 26(3). [3] Ibid, s 26(4)(b). [4] Ibid, s 26(6). By: Reed Boothby, JD Candidate 2023 | UCalgary Law
As start-up’s grow, there often comes a time when they must hire staff. Employment matters are occasionally given less attention than other business, such as raising capital or generating sales, for instance. Employment matters should not be overlooked, however, as the process of hiring and managing employees is an important aspect of a start-up’s success. A written employment agreement defines various rights and obligations between the employer and employee for the purposes of reducing the risk of future dispute and liability. Without a written employment agreement, disputes between the employee and employer will be resolved by applying common law principles and looking for evidence of the parties’ intentions from pre-employment conduct and communications, which may lead to uncertain and potentially undesirable outcomes. A written employment agreement can reduce risk by expressly establishing the relations between the employer and employee, including matters relating to (non-exhaustive):
Employment matters are a crucial aspect to the viability of many start-ups. A start-up can limit future risks related to hiring and maintaining its staff by setting out important matters within an employment agreement, such as (among others): Job Description; Termination; Intellectual Property rights; Confidentiality; Non-competition; and Non-solicitation. For assistance drafting an employment agreement or for further information about the contents of this blog, please contact the BLG Business Venture Clinic. [1] Bryce Tingle, Start-Up and Growth Companies in Canada, 3rd ed (Canada: LexisNexis, 2018) at page 126. [“Tingle’] [2] Ibid. [3] Tingle, at page 128. [4] Employment Standards Code, RSA 2000, c E-9; See also Machiner v Hoj Industries Ltd., S.C.J. No. 41, [1992] 1 S.C.R. 986. [5] Tingle, at page 130. [6] Tingle, page 136; See also GD Searle & Co. v. Novopharm Ltd., [2007] F.C.J. No. 625, [2007] S.C.C.A No. 340 (S.C.C.). [7] Tingle, page 136. [8] Practical Law Canada Employment, “Employee Confidentiality and Non-disclosure Agreements” (2023), online: < https://ca.practicallaw.thomsonreuters.com/9-621-6711>. [9] Practical Law Canada Employment, “Employee Non-Compete and Non-Solicit Agreements” (2023), online: <https://ca.practicallaw.thomsonreuters.com/3-619-0337>; See also Tingle, at page 131. [10] Ibid; See also Tingle, at page 135. Written by Ivana Palacios
UCalgary Law | JD Candidate 2024 There are many duties to which the directors and officers of a company are subject. It is unlikely that the average businessperson is aware of all of them. While this may be of initial concern for a new director or officer, there is good news. There are factors working in favour of directors and officers in Canada. Significantly, one of them is the defense of the Business Judgement Rule.[1] The Duty of Care is one of the fiduciary duties that are owe by directors and officers, the Business Judgement Rule (BJR) provides a defense when this Duty is called into question. In 2004, in what has become known as the People’s case[2], the Supreme Court of Canada officially adopted the BJR. This meant that the courts should give deference to business decisions due to the risk of hindsight bias when considering a decision made in the past. The BJR has three key elements:
The standard by which a board, director, or officer’s decision will be examined is whether it was made prudently and on a reasonably informed basis.[5] The BJR helps directors and officers’ defended decisions made when they are call in to question in hindsight. There are many duties that directors and officers owe and this is only one of the factors working in favour of Directors and Officers in Canada. [1] Bryce Tingle, Start-Up and Growth Companies in Canada, 3rd ed (Canada: LexisNexis, 2018) at 192. [2] Peoples Department Stores Inc. (Trustee of) v Wise, [2004] SCR 461, 2004 SCC 68. [3] Ibid., at para 67. [4] Supra note 1 at 193. [5] Supra note 4. BLG Business Venture Clinic Welcomes New Partnership with Calgary Start-Up Intrinsic InnovationsStarting a business is challenging enough on its own merits. Finding proficient, efficient, and affordable legal assistance is one challenge that the BLG Business Venture Clinic has a solution to. The Clinic is always looking for ways to help support entrepreneurs, start-ups, and growth-businesses with their legal needs. We are excited to announce that we have recently welcomed a new partnership with Intrinsic Innovations – Alberta’s International Start-Up Incubator.
Who is Intrinsic Innovations? Intrinsic Innovations is a not-for-profit international business incubator located in Calgary, Alberta. Intrinsic was Co-Founded in 2021, by Andrew Sanden and Alec Wang, both of whom are extremely accomplished and intelligent businessmen and leaders.[1] Intrinsic Innovations also offers a small venture capital fund titled “Intrinsic VC” which serves to financially aid their incubating businesses as they plant roots in Alberta. Andrew Sanden, the CEO of Intrinsic, offers a wide range of expertise in the start-up space, as well as in the energy and defense communications sectors. Most notably, however, Andrew is passionate about economic immigration, and actively seeks to bring innovative ideas to Alberta. Alec Wang, the former CEO and co-founder of Click Dishes and founder of Nomi, is an integral element of Intrinsic Innovation. His business experience, international presence, and desire to give back to the community is a major factor in the success Intrinsic Innovations has experienced thus far. What does Intrinsic Innovations do? Intrinsic Innovations offers the opportunity to help Canadian companies get their products into international markets and offers to help foreign companies expand or relocate to Canada.[2] The partnership with the BLG Business Venture Clinic will be uniquely focused on individuals with who wish to move to Canada and start an innovative business here. Intrinsic Innovations seized an opportunity in the market to capitalize on the growing appetite for entrepreneurial talent in Alberta. Being a start-up themselves, Intrinsic had to provide a unique edge to their business model. Focusing on entrepreneurs abroad, with brilliant ideas, and a desire to immigrate is the edge Intrinsic offers. They have a keen focus on technology innovation, and one of their goals is to have Alberta recognized as leader in technology commercialization on the world-stage.[3] Intrinsic has built a strong global network that gives founders access to experts, business connections and global services. Intrinsic Innovation’s programs take on a holistic approach that ensures founders are positioned to achieve success for their business and for their family’s settlement in Calgary. They provide a longer-term relationship-focused program that supports their clients for a period of 18-months to two years. The program is very personalized and prepares founders on business practices and culture, while also helping their families feel supported as they become comfortable in their new environment. Intrinsic VC has worked with 12 companies to date (companies from Canada, China, Bangladesh, Iran, Eastern Europe and South America). Industries include robotics, AgTech, HealthTech, EduTech and FinTech. Furthermore, Intrinsic has developed an online training program to help guide international start-up entrepreneurs in the innovation technology space as they start their businesses here. The training program provides an overview about important business practices and business culture in Canada. Upon successful completion, founders will be equipped with the knowledge they need to establish a company in Canada, effectively navigate the Canadian business environment and successfully grow their business based on intrinsic knowledge on the specifics of business practices and business culture in Canada. Why is the Partnership with the BVC Important? The Business Venture Clinic is student-run free legal clinic whose success depends on the community. The relationships the Clinic fosters and maintains with its partners and clients provide workflow and allow the students the opportunity for hands-on experience. It is precisely these types of relationships that has helped the BLG Venture Clinic successfully operate for over a decade. The opportunity to work with Intrinsic Innovations opens a new door for not only this year’s students, but it also opens doors for new members of Calgary’s community. Practical experience as a law-student is invaluable, and what better way to gain it than by providing access to legal information for entrepreneurs! Authored by Claire Standring UCalgary Law | JD Candidate 2024 [1] “Intrinsic Innovations”, online: <www.intrinsicinnovations.ca> [Intrinsic Website]. [2] See ibid. [3] See ibid. Written by Chiara Lasquety
JD Candidate 2023 | UCalgary Law Taken together, the general rule articulated in sections 9(1), 67, and 18(1)(a) of the Income Tax Act (the “ITA”) is that reasonable expenses associated with operating a business may be deducted against the income generated by that business. Such costs include not only all the ordinary operations costs but also moneys paid in the discharge of liabilities normally incurred in the operations. These expenses include amounts spent on employee salaries, rent, research and development, furniture and equipment, etc.[1] Note: The deduction of business losses under the ITA is optional, not mandatory.[2] Accordingly, subsection 111(1)(a) of the ITA permits a corporation (or individual businessperson) to carry losses forward for twenty (20) years or applied back three (3) years.[3] Start-Up Expenses An established, profitable company can immediately make use of the losses associated with the start-up costs of a new business.[4] A newly formed corporation undertaking a new business is able to deduct its start-up expenses, but because it has no income the corporation gains no immediate tax savings from the deduction.[5] Other Permitted Deductions Additionally, other permitted deductions under the ITA include, but are not limited to, the following:
Prohibited Deductions In computing the income of a taxpayer from a business or property no deduction shall be made in respect of:
Additional Considerations re: Canadian Controlled Private Corporations (CCPCs) A CCPC is simply a type of private corporation controlled by residents of Canada.[10] Many businesses aim to be designated as a CCPC because of its advantages when it comes to tax reliefs, including a lower tax rate.[11] A common strategy for small businesses is to use just enough of a year’s expenses to reduce a CCPC’s income to $500,000 in order to benefit from the special low tax rate – saving any remaining expenses for application against income in future years.[12] Flow-Through Taxation for Unincorporated Businesses For unincorporated structures, such as partnerships and limited partnerships, losses may flow-through from the partnership to their partners, who can then use those losses to reduce their personal taxes.[13] Conclusion As opposed to the limited deductions available to employees in reducing one’s taxable income, there are various deductions available for businesses to utilize under the ITA. For further information regarding any of the foregoing, or about tax considerations in structuring your enterprise generally, 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 38. [2] Ibid. [3] Income Tax Act, RSC 1985, c 1, s 111(1)(a) [ITA]. [4] Supra note 1. [5] Ibid. [6] ITA, s 20(1)(c)(i); Shell Canada Ltd. v Canada, [1993] 3 S.C.R. 622. [7] ITA, s 248(1)(d). [8] ITA, s 18(12)(b). [9] ITA, s 18(12)(c). [10] Diana Grey, “What are Canadian-controlled private corporations (CCPC)?” (January 2021), online: Wealthsimple <https://www.wealthsimple.com/en-ca/learn/canada-controlled-private-corporations#what_is_a_ccpc>. [11] Ibid. [12] Supra note 1. [13] Ibid. By Shazaib Rashid, JD Candidate 2024 | UCalgary Law
Introduction Starting and growing a business requires a significant number of financial resources and is one of the most crucial aspects of achieving success is raising capital.[1] Insufficient funding can hinder a business from taking off, sustaining operations, or competing effectively in its industry. As such, understanding financing options is an essential skill for any entrepreneur who wants to succeed in today's competitive marketplace. As a startup, you have several financing options to consider, including debt and equity financing. The decision between the two can be challenging, as both have their advantages and drawbacks. Generally depending on multiple types of sources of capital will afford more flexibility and reduce expose to risks in financial markets.[2] In this blog, we will discuss the benefits and drawbacks of debt and equity, provide examples, and give considerations for when to use each one. Debt Financing Debt financing involves borrowing money from a lender and paying it back with interest over a specific period.[3] Examples of debt financing include business loans from banks, credit unions, or other financial institutions, merchant cash advances, personal loans, lines of credit. Benefits of Debt Financing
Debt financing is an attractive option for startups that want to maintain ownership and control of their business. However, it is not ideal for long-term funding needs. Equity Financing Equity financing involves selling ownership to investors in exchange for funding.[8] Examples of equity financing include angel investments, venture capital investments, crowdfunding, initial public offerings. Benefits of Equity Financing
Equity financing can be an attractive option for startups because it does not require repayment of the investment. However, it can be costly for the business. Considerations for Choosing Debt or Equity Financing When deciding between debt and equity financing, there are several considerations to keep in mind as these can significantly influence your decision when choosing between debt and equity financing. Some critical considerations are risk tolerance, funding needs, and growth potential. Risk Tolerance
In conclusion, raising capital is an essential aspect of starting and growing a business. With careful consideration and planning, you can make an informed decision that aligns with your goals and helps your business thrive. [1] Bryce Tingle, Start-Up and Growth Companies in Canada, 3rd ed (Canada: LexisNexis, 2018) at 69. [2] Ibid [3] Ibid., at 70 – 73. [4] Ibid [5] Ibid [6] Ibid [7] Ibid [8] Ibid., at 73 - 76 [9] Ibid [10] Ibid [11] Ibid [12] Ibid Written by Sarah Dallyn
JD Candidate 2024 | UCalgary Law There is a lot of paperwork involved in getting a new business off the ground and it can be overwhelming to keep all the different documents straight. One set of documents that are essential to the formation and organization of any new corporation are the constating documents. This blog provides a brief overview of what constating documents are and why these documents are important to your start-up. What are constating documents? Constating documents, also referred to as organizational documents, are the documents that establish a corporation and set out how the internal affairs of the business are governed.[1] Under the Canada Business Corporations Act (CBCA), a corporation’s constating documents consist of articles of incorporation, bylaws, and unanimous shareholder agreement.[2] Articles of Incorporation: Every corporation incorporating under the CBCA or the Alberta Business Corporations Act (ABCA) is required to file an articles of incorporation document with the regulator appointed to administer the act.[3] The articles of incorporation are the charter or constitution that set out basic elements of the corporation and provides the framework for its formation.[4] Under the CBCA[5] and the ABCA[6], articles of incorporation must include the following information:
The CBCA also requires the province in Canada where the registered office of the corporations is to be situated.[7] In addition to the required information above, articles of incorporation may also include additional provisions depending on the specific needs of the business. It is important to carefully consider your business and tailor the articles of incorporation to your business’s specific structure to help avoid shareholder disputes or taxation issues in the future.[8] Bylaws: Bylaws are the specific rules and procedures for the internal governance of the corporation.[9] In other words, the bylaws are like the internal operating manual for your business.[10] The bylaws often cover the procedures for board and shareholder meetings, the composition and election of the board of directors, and corporate record-keeping. These rules must be consistent with the articles of incorporation. [11] However, unlike the articles of incorporation, bylaws are not required by law under the CBCA or the ABCA. If a corporation chooses not to pass its own bylaws, the CBCA or the ABCA will act as the default for certain affairs of the corporation.[12] Although not legally required, bylaws are important to establish the effective governance of the corporation and may be required in the future by third parties such as potential investors or banks lending money to the corporation.[13] Unanimous Shareholder Agreement: A unanimous shareholder agreement is defined in the CBCA as a written agreement among all the shareholders of a corporation that restricts the powers of the directors to manage, or supervise the management of, the affairs of the corporation.[14] The purpose of a unanimous shareholder agreement is to transfer authority over some or all management decisions from the directors to the shareholders of the corporation.[15] It is important to note that under the ABCA, the removal of power from the directors is not required and instead represents one of several things that may be included in a unanimous shareholder agreement.[16] Furthermore, as is the case with bylaws, a unanimous shareholder agreement is not a legal requirement under the CBCA or the ABCA.[17] In addition to binding current shareholders, all subsequent shareholders are also bound to the terms of the unanimous shareholder agreement. This can be problematic for growth companies as they add new shareholders as it becomes more difficult to efficiently make decisions among all shareholders.[18] Furthermore, the CBCA and ABCA provides no clear-cut procedures for governing shareholder decisions made under a unanimous shareholder agreement. Another issue is that the powers exercised by shareholders under a unanimous shareholder agreement attract the same kind of fiduciary duties that attach to the activities of directors.[19] New shareholders may not want to become bound to the fiduciary duties of the corporation, especially if they already have fiduciary duties to their own shareholders.[20] As these potential issues illustrate, it is very important to think through your business and growth plans to determine whether or not a unanimous shareholder agreement is appropriate for your specific business. If a unanimous shareholder agreement is not entered into, there are other types of shareholder agreements that do not fall within the meaning of CBCA or ABCA’s definition of unanimous shareholder agreement that can be drafted to set forth the various rights and obligations of the corporation’s shareholders. If you have questions regarding the various constating documents discussed above or require assistance with the drafting of your start-up’s constating documents, please reach out to the BLG Business Venture Clinic. [1] Ahlstrom Wright, Definition: Constating Documents (April 18, 2018), online: https://ahlstromwright.ca/definitions-constating-documents/ [2] Practical Law, Glossary: Constating Documents, online: https://ca.practicallaw.thomsonreuters.com/Document/I188aaba9f92311e498db8b09b4f043e0/View/FullText.html?listSource=Foldering&originationContext=MyResearchHistoryRecents&transitionType=MyResearchHistoryItem&contextData=%28oc.Default%29&VR=3.0&RS=WLCA1.0 [3] Practical Law, Glossary: Articles of Incorporation, online: https://ca.practicallaw.thomsonreuters.com/Glossary/CAPracticalLaw?docGuid=I75b15b03f95911e498db8b09b4f043e0&transitionType=DocumentItem&contextData=(oc.Default)&ppcid=66e3e985f4a0458c8fc2c0c02dbb4792 [4] Upcounsel, Bylaws vs. Articles of Incorporation, online: https://www.upcounsel.com/bylaws-vs-articles-of-incorporation [5] CBCA R.S.C., 1985, c. C-44, s 6(1) [6] ABCA RSA 2000, c B-9, s 6(1) [7] CBCA, supra note 5 [8] Kahane Law Office, Understanding The Articles That Form Your Corporation, online: https://kahanelaw.com/articles-of-incorporation-corporate-lawyers-calgary/ [9] Supra note 4 [10] Lena Eisenstein, Articles of Incorporation and Bylaws: Same or Different? (September 29, 2021), online: https://www.boardeffect.com/blog/difference-between-articles-of-incorporation-and-bylaws/ [11] Ahlstrom Wright, What is A Corporate Bylaw And Why Do Corporations Need Them? (April 20, 2018), online: https://ahlstromwright.ca/what-is-a-corporate-bylaw-and-why-do-corporations-need-them/#:~:text=There%20is%20no%20legal%20requirement,although%20it%20is%20not%20recommended. [12] Ibid [13] Ibid [14] Bryce Tingle, Start-up and Growth Companies in Canada: A Guide to Legal and Business Practice, p. 100-101 [15] Ibid at p. 101 [16] Ibid [17] In 1998, the Supreme Court of Canada recognized unanimous shareholder agreements as being one of the three constating documents for a corporation under the Canada Business Corporations Act in Duha Printers (Western) Ltd. v. R. [1998] 1 S.C.R. 795 [18] Ibid at p. 102 [19] Ibid at p. 104 [20] Ibid at p. 104 Authored by Shazaib Rashid, UCalgary Law, JD Candidate 2024
Patents play an important role in both promotion innovation and economic growth. In Canada, patent law is governed by the Patent Act[1], a complex series of rules and regulations which came into force in 1869. A Patent is a type of intellectual property, that provides the owner the sole and exclusive right to making, using, or selling their innovation. In Canada, the first applicant to file a patent application for an invention will be entitled to obtain patent protection for that invention. This protection lasts up to 20 years starting from the date of filing.[2] Additionally, a patent application must be filed or registered in each country where patent protection is desired. The Patent Act defines an invention as “any new and useful art, process, machine, manufacture or composition of matter or any new and useful improvement in any art, process, machine, manufacture or composition of matter.”[3] Although the definition is broad and would cover a broad variety of different item, there are specific criteria that must be met to receive a patent. To be patentable in Canada an invention must meet three main criteria: new, novel and non-obviousness.[4] First the invention must new, to be considered novel the invention cannot have been disclosed in such a manner as to have become publicly. However, this does not mean that you need to re-invent the wheel you can patent a combination of old inventions as long results in the production of a novel invention. Second the invention must also be useful, to be useful the invention for the purpose which it was designed. An invention has utility if: (a) it gives a benefit to the public; (b) it is useful in achieving a particular purpose; (c) it makes a process better or cheaper; (d) it is advantageous under certain circumstances; and (e) it works.[5] Lastly the innovation must non-obviousness or inventive ingenuity, this requirement was added originally through case law[6] and now by statute. The invention cannot be obvious to a hypothetical individual, someone who possesses the relevant technical experience and knowledge. The typical process to obtain a patent is as follows: Applicants prepare and file the application; If you are considering a patent the typical process to obtain a patent is as follows: Applicants prepare and file the application; Applicants must then request if the invention is new by searching prior art; The examiner looks for possible defects or issues in the application and may send a report to the applicant if there are any; The applicant files a correction or response to that report. If there are still defects, the examiner can issue another report.[6] If you are considering it is also recommended that one consider hiring a patent agent and/or IP lawyer to help them. [1] Patent Act, RSC 1985, c P-4 [2] Ibid, s. 44 [3] Ibid. [4] Donald M. Cameron “Canadian Patent Law Primer” (2012) at pg. 7, online (pdf): < patweb00.pdf (jurisdiction.com)> [5] Ibid at pg. 9 [6] Government of Canada, “Filing a patent application: the devil is in the details” (02 February, 2022). Online: Canadian Intellectual Property Office <https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/corporate-information/blog/filing-patent-application-devil-details> |
BVC BlogsBlog posts are by students at the Business Venture Clinic. Student bios appear under each post. Categories
All
Archives
November 2023
|