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Written by Matthew Carter
JD Candidate 2026 | UCalgary Law We live in a world that is increasingly more online, and the same is true for businesses. E-commerce has transformed the way businesses need to operate to grow and survive. Online sales give start-ups, growth companies and entrepreneurs across Canada the opportunity to reach customers outside their local markets and across-borders. However, this opportunity comes with a myriad of legal considerations that businesses should be cognizant of in order to comply with federal and provincial law. This post explores several key legal issues for e-commerce businesses in Alberta, covering privacy laws, online contracts, tax implications and intellectual property. Privacy Laws and Data Protection In Canada, the Personal Information Protection and Electronic Documents Act (PIPEDA) governs how businesses collect, use, and disclose personal information during commercial activities [1]. For e-commerce businesses, selling products/services online often includes the collection of customer data such as names, addresses, payment information, and browsing habits. Alberta has its own legislation, the Personal Information Protection Act (PIPA), which applies to private-sector organizations within the province and further regulates how businesses handle customer data [2]. Under PIPA, businesses must obtain meaningful consent from customers before collecting their personal information [3]. This means clearly explaining what data will be collected, how it will be used, and whether it will be shared with third parties. Both PIPEDA and PIPA require businesses to implement reasonable security measures to protect customer data [4]. Failure to do so can result in significant legal and reputational consequences. For example, data breaches can lead to regulatory investigations, fines, and loss of customer trust [5]. Businesses are also required to report data breaches that pose a real risk of significant harm to affected individuals and to the Office of the Information and Privacy Commissioner of Alberta (OIPC). Timely notification is critical to mitigating the impact of a breach and the liability to the business. In 2024, the Office of the Privacy Commissioner of Canada (OPC) launched an investigation into Ticketmaster following a data breach that exposed customer information [6]. The breach involved an unauthorized third party accessing a cloud database containing names, contact information, and payment details. The investigation highlighted Ticketmaster’s failure to promptly notify affected customers and regulators, as well as concerns about third-party vendor management. This case serves as a cautionary tale for e-commerce businesses about the importance of robust data security and compliance with privacy laws. Online Contracts Online contracts are essential for e-commerce businesses to establish the rules governing their relationship with customers. However, these contracts must be carefully drafted to ensure they are enforceable under Canadian law. The substance of the formation of these contracts is vital to ensure the contract is valid and enforceable. There must be an offer, acceptance and consideration [7]. Businesses must ensure that customers are actively agreeing to the terms (i.e. by clicking “I agree”) rather than burying the terms in fine print. E-commerce businesses should specify the jurisdiction and governing law that apply to disputes. This is to reduce costs in the event there is a dispute and avoid litigation in an unfavourable or distant location. Alberta based companies may want to specify within their online contracts that Alberta law governs its contracts and will be used to adjudicate disputes. In Rudder v. Microsoft, the Ontario Superior Court upheld the enforceability of an online contract, emphasizing the importance of providing users with reasonable notice of the terms and an opportunity to review them [8]. The case highlights the need for e-commerce businesses to design their websites in a way that ensures customers are acutely aware of the terms they are agreeing to. Cross-Border Sales and Tax Compliance E-commerce businesses in Alberta that sell to customers in other provinces or countries must navigate additional legal and tax considerations. Businesses must charge the appropriate sales tax based on the customer’s location. For example, Alberta does not have a provincial sales tax, but businesses selling to customers in other provinces (such as Ontario) may need to charge GST/HST or provincial sales tax. In addition, e-commerce businesses conducting cross border transactions must have the proper transfer pricing documentation for any good passed within the business across borders. Selling internationally may require compliance with customs regulations and import/export laws. This includes properly classifying goods, paying duties, and ensuring compliance with trade agreements. The decision in Canada v Dawn’s Place Ltd by the Federal Court of Appeal stresses the necessity of properly applying GST/HST regulations to avoid penalties [9]. The ruling serves as a reminder for businesses to accurately assess their tax obligations to ensure compliance and prevent expensive disputes with tax authorities. Intellectual Property Protection E-commerce businesses should also consider potential infringement on established IP, trademark and copyright. Barbie’s Shop is a relevant IP case that covers trademark infringement in the context of e-commerce [10]. The plaintiff, Barbie’s Shop Ltd, operated a retail store and website selling merchandise under the name “Barbie’s Shop.” Mattel is the international business known for owning the Barbie trademark associated with the children’s toys and sued the plaintiff for infringement due to the confusion it would cause customers and damage to the brand. The Federal Court of Canada ruled in favour of Mattel, finding that the use of the name depreciated the goodwill associated with the brand name. The case emphasizes the importance for an e-commerce business to research potential infringements before conducting business under a trade name. Registering a trademark can help protect a business’s brand name, logo, and slogans from being used by competitors as well as turn up any potential conflicts that a name would have with an already existing business. It is important for e-commerce businesses to avoid the costly lawsuits associated with trademark infringement that hinder the company's growth and profitability. Conclusion Operating an e-commerce business in Alberta offers a myriad of growth opportunities to entrepreneurs but also calls for careful consideration of a number of legal issues that have stifled other businesses in the past. Owners of these e-commerce businesses should be aware of the legal issues concerning privacy of customer data, online legal contracts, tax considerations and IP infringements. Taking the time to review the various legal considerations outlined in this blog and seeking legal advice when necessary is important for Alberta entrepreneurs to scale their businesses while reducing their legal liabilities.
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Written by Lucas Pelster
JD Candidate 2026 | UCalgary Law Mandatory arbitration clauses have become a common feature in contracts across various industries in Canada. These clauses require parties to resolve disputes through arbitration rather than through litigation, often promising an expedited and less expensive resolution. However, binding oneself to an arbitration process is not without it’s risks. When considering whether to include a mandatory arbitration clause in a contract, it is crucial to understand not only the rights gained but also the rights potentially forfeited. Advantages and Disadvantages of an Expedited Process Dispute resolution through arbitration makes intuitive sense, especially within the small business venture sector. Business look to grow as large as possible in as small as possible time frame. Litigation is a large deterrent to a company trying to keep up with the market or beat its competitors in product development. Further still, businesses seek investment from shareholders, shareholders would be weary to trust a business that is tied up with disputes in court. The solution, then, in dealing with disputes is mandatory arbitration set out by contract. One of the primary advantages of arbitration over litigation is its potential for speed and cost-efficiency. For smaller disputes that involve moderate sums of money, or require quick resolution, arbitration can be highly beneficial. However, this expediency often comes at the cost of procedural rigor. For example, arbitration typically involves fewer document production obligations compared to civil litigation. This can hinder a party's ability to demand crucial documentary evidence from the other side. An arbitrator may disallow document production requests to maintain the speed and cost-effectiveness of the process, even if such documents would be producible under civil litigation rules. In complex disputes, where documents are a significant source of evidence, mandatory arbitration may do more harm than good. Appeal rights are another area where mandatory arbitration clauses significantly limit parties' rights. While civil litigation allows for extensive appeals and reviews, such rights are almost entirely removed in arbitration. Interlocutory decisions, such as those on document production, are generally not appealable, forcing parties to accept decisions that could have substantial consequences on their case development. The ultimate decision of an arbitrator is only appealable in narrow circumstances, typically concerning the application of law rather than factual determinations. This limitation can be risky when significant amounts are at stake, as parties may want to exhaust all procedural remedies to ensure the correct decision is made. Concerns of Enforceability The enforceability of arbitration clauses is another critical consideration. Once entered, such clauses are usually binding. However, there are exceptions. In Uber Technologies Inc. v. Heller, the Supreme Court invalidated Uber's arbitration clause on the grounds of unconscionability and public policy.[1] The Court found that the inequality of bargaining power between Uber and its drivers resulted in an "improvident bargain," making the arbitration clause unenforceable.[2] This decision highlighted that arbitration clauses in standard form contracts, especially those involving significant power imbalances, could be struck down if they are deemed unfair. In contrast, the Court of Appeal of British Columbia in Williams v. Amazon.com upheld an arbitration clause in a standard form contract, distinguishing it from the Uber case.[3] The Court found that the arbitration agreement did not unduly advantage Amazon or disadvantage the plaintiff, and thus, it was enforceable. This case underscores that while some provinces preclude mandatory arbitration clauses in consumer contexts, others, like British Columbia, do not. The Telus Communications Inc. v. Wellman Case The Supreme Court of Canada's decision in Telus Communications Inc. v. Wellman further illustrates the complexities surrounding mandatory arbitration clauses.[4] In this case, Wellman filed a class action against Telus, alleging that customers had been overcharged due to undisclosed billing practices.[5] The contracts included a mandatory arbitration clause for resolving disputes. The class action involved both consumers and business customers. Ontario's Consumer Protection Act prohibits mandatory arbitration clauses and class action waivers in consumer agreements.[6] However, this protection does not extend to business customers. Telus argued that the business customers were bound by the arbitration clause, while the consumers were not. The lower courts sided with Wellman, allowing the lawsuit to proceed despite the arbitration clause. However, the Supreme Court reversed this decision, ruling that the business customers were bound by the arbitration clause and their claims must be stayed in favor of arbitration. This decision underscores that arbitration clauses in commercial contracts will generally be upheld, even in the context of class actions. It also highlights the importance of clear legislative frameworks to protect consumers while balancing the interests of businesses. Insolvency and Arbitration The protections of arbitration agreements in Canada are generally robust, but they can be challenged in the context of insolvency. When one party to a dispute is in an insolvency proceeding, the rules can change, and the agreement to arbitrate may not proceed as expected. If the insolvent party is the target of a claim, arbitration is generally stayed, and the claim is dealt with through a centralized claims process in the insolvency proceeding. This approach, known as the "single control model," ensures that all claims against an insolvent party are handled in a single forum, preventing the debtor from expending extensive resources defending claims in various jurisdictions. However, if the insolvent party or its estate representative is asserting the claim, the appropriate venue for resolution is less clear. The insolvent party may advocate for an expedited court process for speed and efficiency, while the counterparty may argue for arbitration based on their contractual rights. This complex scenario was recently addressed by the British Columbia Court of Appeal in Petrowest Corporation v. Peace River Hydro Partners.[7] In the Petrowest case, the receiver pursued claims under several agreements that included arbitration clauses. The Court of Appeal determined that a receiver cannot selectively enforce favorable terms of an agreement while disclaiming unfavorable ones. However, the court also concluded that the receiver could avoid the arbitration clauses based on the doctrine of separability, which treats arbitration clauses as independent agreements. The receiver, not being a party to the original arbitration agreements, was not bound by them and could pursue claims through the court. Implications for Commercial Corps. The Petrowest decision has significant implications for parties to agreements with Canadian counterparties that contain arbitration clauses. It highlights that arbitration clauses may not be enforceable when defending claims by the receiver of an insolvent counterparty. The analysis may differ in a debtor-in-possession restructuring scenario, where the debtor itself is pursuing claims and could disclaim agreements. Courts will consider whether the disclaimer enhances the prospects of a viable compromise and whether it causes significant financial hardship to the counterparty. Third-Party Beneficiaries The recent decision in Husky Oil Operations Limited v. Technip Stone & Webster Process Technology Inc. by the Court of Appeal of Alberta further complicates the enforceability of arbitration clauses, particularly concerning third-party beneficiaries.[8] The Court cautioned against enforcing arbitration provisions on third-party beneficiaries unless the requirement to arbitrate is manifest and expressed in clear and explicit language. This decision emphasizes the importance of clear contractual language and the limitations of imposing arbitration obligations on parties who did not expressly agree to them. The Orica Canada Inc. v. ARVOS GmbH Case Another important case is Orica Canada Inc. v. ARVOS GmbH, wherein the Alberta Court of King’s Bench addressed the kompetenz-kompetenz principle and the interpretation of arbitration clauses.[9] The court found that the kompetenz-kompetenz principle, which allows an arbitral tribunal to rule on its own jurisdiction, does not apply to jurisdictional challenges involving pure questions of law or mixed fact and law requiring only superficial consideration of the record. Additionally, the court held that claims arising by operation of law, such as indemnity claims under the Tort-Feasors Act (Alberta), do not fall within the scope of an arbitration agreement. This case focused on a third-party claim which arose in the context of litigation but was subject to an arbitration agreement. The plaintiffs, Orica Canada Inc. and Orica International Pte. Ltd., filed a claim against ARVOS GmbH for fabrication and assembly deficiencies in industrial equipment. ARVOS, in turn, filed a third-party claim against Arsopi, the equipment's manufacturer, under a purchase order that included an arbitration clause. The court applied the principles established by the Supreme Court in Peace River Hydro Partners v. Petrowest Corp. and Uber Technologies Inc. v. Heller. It found that the kompetenz-kompetenz principle did not apply because the jurisdictional challenge involved pure questions of law and there was a real prospect that the challenge might never be resolved by an arbitrator due to time-barred arbitration under German law. The court also determined that while the Tort Claim and Contract Claim fell within the scope of the arbitration clause, the TFA Claim did not, as it arose by operation of law under the Tort-Feasors Act and common law. This decision introduces potential for bifurcation of arbitration proceedings, leading to increased costs and risks of inconsistent results. Main Takeaways While arbitration offers speed and cost-efficiency, it often comes at the expense of procedural rights such as document discovery and appeals. The decision to include an arbitration clause should be carefully considered, considering the relationship between the parties, the nature of potential disputes, and the monetary stakes involved. Arbitration clauses can be beneficial for timely dispute resolution but are not a one-size-fits-all solution. Both the decision to include such a clause and its contractual language should be carefully evaluated. In conclusion, while mandatory arbitration clauses can streamline dispute resolution, they also pose significant risks and limitations. Parties should weigh these factors carefully and ensure that any arbitration clause is tailored to their specific needs and circumstances. Clear and explicit language is essential, especially when dealing with third-party beneficiaries, to avoid unintended obligations and ensure enforceability. [1] Uber Technologies Inc. v Heller, 2020 SCC 16 [Uber]. [2] Ibid at para 64. [3] Williams v Amazon.com Inc., 2023 BCCA 314 [Amazon]. [4] Telus Communications inc. v Wellman, 2019 SCC 19. [5] Ibid at para 10. [6] Consumer Protection Act, 2002 S.O. 2002, c. 30, Sched. A at section 7(2). [7] Peace River Hydro Partners v Petrowest Corp., 2022 SCC 41. [8] Husky Oil Operations Limited v Technip Stone & Webster Process Technology Inc, 2024 ABCA 369. [9] Orica Canada Inc. v ARVOS GmbH, 2024 ABKB 97. Written by Alec Fader
JD Candidate 2025 l UCalgary Law DISCLAIMER: This analysis focusses on statutes in Alberta. There are nuances in various partnership and corporations acts across provinces and federal jurisdictions and, although the principles are generally similar, corporate structures being created in other jurisdictions should be researched separately. There are, generally, three types of business associations in Canada which concern start-ups: (i) sole proprietorships, (ii) partnerships, and (iii) corporations. Each of different type of business association has a variety of pros and cons, and there are important considerations regarding how an entrepreneur should structure their start-up. This article seeks to provide a brief outline of what each of these business associations is, and their advantages and disadvantages. Factors Which May Influence the Type of Business Association There are several factors which may influence a business’ decision to choose a certain structure. Two of the most salient are:
Sole Proprietorships A sole proprietorship is a business that is created, run, and controlled by one person. There are no formal requirements for the creation of a sole proprietorship – once an individual engages in business, they have created a sole proprietorship.[3] Advantages
Disadvantages
Partnerships There are multiple types of partnerships, including:
For the purposes of this article, I will focus on partnerships, as LLPs are available only for certain types of professions (such as lawyers, doctors, and accountants),[10] and LPs are a more complicated structure generally used for joint venture projects and for specific tax reasons, and there is generally not much utility for start-up companies (as the trade-off to obtain limited liability in the LP is to have no role in the management of the LP).[11] Partnership A partnership is a type of business organization where two or more people carry on business together with the intention of making a profit.[12] This happens by operation of law and is a question of fact. There are no filings necessary to create a partnership – if the necessary elements of a partnership are there, a partnership has been created. Advantages
Disadvantages
Corporations A corporation is a distinct legal entity which has several of the same rights as a natural person. As a quick run-down, the corporation has shareholders, directors, officers. The shareholders of the corporation are commonly referred to as the “owners” of the corporation – they hold equity in the corporation and are entitled to the residuary (what is left over after all other outstanding obligations are paid out in the event of liquidation of the corporation). Shareholders become shareholders by providing capital to the corporation in exchange for equity. Directors are the individuals who run the corporation. The directors, under corporations’ law, have all power to manage and direct the corporation, however, this power must be exercised in a “quorum” as a board.[16] Therefore, it would be inefficient to manage the day-to-day operations as a board, and day-to-day management powers are delegated to the officers, who are the C-Suite of the corporation (CEO, CFO, etc.).[17] It is important to note that there are some functions which cannot be delegated to management,[18] and some functions of the corporation which must be approved by shareholders.[19] Advantages
Disadvantages
[1] Bryce C. Tingle, Start-Up and Growth Companies in Canada: A guide to Legal and Business Practice, 3rd ed (Toronto, Canada: LexisNexis Canada Inc, 2018) [Tingle, Growth Companies], at 37. [2] Ibid, at 28. [3] Government of Canada: https://www.canada.ca/en/revenue-agency/services/tax/businesses/small-businesses-self-employed-income/setting-your-business/sole-proprietorship.html [GoC, Small Businesses]. [4] Ibid; Joshua J. Marych and Mitchell Grimmer, “Three Basic Business Structure: Corporations, Sole Proprietorships, and Partnerships” (2024), online at https://www.parlee.com/news/three-basic-business-structures-corporations-sole-proprietorships-and-partnerships/#:~:text=The%20benefits%20of%20incorporation%20include,the%20most%20common%20in%20Alberta. [Marych and Grimmer, Business Structures]. [5] Government of Canada: https://www.canada.ca/en/services/business/start/register-with-gov/register-sole-prop-partner.html. [6] GoC, Small Businesses, supra note 3. [7] Ibid. [8] Tingle, Growth Companies, supra note 1 at 36. [9] Marych and Grimmer, Business Structures, supra note 4. [10] Partnership Act, RSA 2000 c P-3 [Partnership Act], s.81. [11] Partnership Act, s. 56; Marych and Grimmer, Business Structures, supra note 4; Tingle, Growth Companies, supra note 1 at 37. [12] Partnership Act, s.1(g). [13] See generally the Partnership Act. [14] Partnership Act, s. 15. [15] Tingle, Growth Companies, supra note 1 at 36. [16] Business Corporations Act, RSA 2000, c B-9 [ABCA], s.114. [17] Ibid, s. 115(1) [18] Ibid, s.115(3). [19] See ABCA generally. [20] Marych and Grimmer, Business Structures, supra note 4. [21] Tingle, Growth Companies, supra note 1 at 36. [22] Marych and Grimmer, Business Structures, supra note 4.; Invest Alberta: https://investalberta.ca/why-alberta/tax-advantages/. [23] BDC: https://www.bdc.ca/en/articles-tools/start-buy-business/start-business/advantages-different-business-structures#:~:text=Corporations%20are%20more%20complicated%20legal%20structures%20compared%20to%20sole%20proprietorships%20or%20partnerships. Raising Capital in Alberta’s Capital Markets – Private Issuer Exemptions and Securities Laws11/14/2024 Written by Robert Rizzuti
JD Candidate 2025 | UCalgary Law Start-ups and entrepreneurs often require capital to fund their rapidly growing businesses. As such, when seeking investments in return for capital, whether from friends, family, or other sources, it’s important to understand that such transactions trigger securities laws, such as the Alberta Securities Act (Alberta)[1] or the provincial securities act of the applicable jurisdiction. Canadian securities laws apply to any issuer of securities, even a private start-up. Any transaction involving securities – i.e., giving shares to private investors to help a business – triggers these laws. As a result, startups and early-stage issuers often unintentionally violate securities laws. Fortunately, an issuer may qualify for certain reporting exemptions as a “private issuer”. This article highlights key aspects of exemptions, and securities laws to be aware of avoid the serious consequences of non-compliance. Prospectus Requirements There are two primary principles in the Canadian securities regime: 1. No person or company may buy or sell securities unless registered as an advisor or dealer;[2] and 2. a prospectus must be filed with the Alberta Securities Commission (the “ASC”) when a person or company distributes its shares to investors.[3] A prospectus requires “full, true and plain disclosure” of the issuer’s business and the securities being offered. This provides investors with complete and accurate information to make an informed investment decision. Filing a prospectus is costly and time-consuming, especially for a startup that is attempting to grow with limited funds. Additionally, registering as a dealer and filing a prospectus eliminates or reduces the chance of a growth company raising early rounds of financing.[4] Fortunately, prospectus exemptions may be relied on pursuant to National Instrument 45-106.[5] Private Issuer Exemption Start-ups often use the private issuer exemption and will exhaust this exemption before relying on the other potentially applicable prospectus exemptions. This exemption will apply if:[6]
The securities can only be offered to the company’s directors, officers, employees, founders, and control persons or their close family members, close personal friends, and close business associates. In addition, accredited investors are included on the enumerated list.[7] It is important to note that a family member includes parents, grandparents, siblings, and children. The practical effect of fitting under this exemption is not having to file a costly and time-consuming prospectus with ASC or other provincial securities regulators. In addition, the company is exempted from filing form 45-106 F1 (the “Report of Exempt Distribution”) in Alberta. Other Common Exemptions Eventually, a company will cease to be a private issuer either because it has too many shareholders or because it has distributed shares to members of the public. Yet, companies could be allowed to sell shares to certain classes of investors under the following exemptions. The Family, Friends and Business Associates Exemption is used when the investor has a special relationship with the company.[8] Under this exemption, a close personal friend is an individual who knows the other well enough and has known them for a sufficient period of time to be in a position to assess their capabilities and trustworthiness.[9] A close business associate is an individual who has had sufficient prior business dealings with the other to be in a position to assess their capabilities and trustworthiness.[10] The narrowly used Employees, Directors, Senior Officers and Consultants Exemption is used for trades by an issuer with its employees, directors, senior officers, and those consultants (with a written consultant agreement)[11] that spend a “significant amount” of time working with the company. There is an Accredited Investor Exemption that is predicated on the fact that some high-income and net-worth investors,[12] due to their resources and financial knowledge are sophisticated enough to make investment decisions without the protections afforded by a prospectus and registration requirements. This exemption is often used by angel investors and venture capital investors in growth companies. The most common categories of accredited investors include:[13]
When the investor is an incorporated entity a less commonly used exemption is the Minimum Amount Investment Exemption, which provides an exemption from prospectus requirements where a company acquires more than $150 thousand worth of securities.[14] Except for the Employees, Directors, Senior Officers and Consultants Exemption, all the other common exemptions mentioned in this section require filing the Report of Exempt Distribution within 10 days at the ASC, and potentially in each jurisdiction in which the distribution takes place. Other Rules and Best Practices
Conclusion Start-ups and entrepreneurs looking to attract capital from investors should be aware that a prospectus is required to be filed with securities regulators unless a private issuer exemption is applicable. Relying on an exemption is a great way to raise capital from a limited number of investors without burdensome and costly prospectus requirements, especially where the company is looking to grow in a cash-strapped environment. However, caution is warranted, there are serious pitfalls and traps in the Canadian securities regulatory field with serious consequences for being offside an exemption under NI 45-106 or making prohibited representations about a company’s future. Navigating the complexities of securities law in the start-up landscape is crucial since non-compliance with Canadian securities laws can have significant consequences, including penalties and fines, trading restrictions, and in severe cases jail time. Overall, one should remain vigilant to ensure compliance with securities laws, and understand that properly relying on a prospectus exemption can offer flexibility when raising capital. We encourage you to reach out to the Business Venture Clinic for legal information or to seek professional counsel for tailored legal advice. ________ [1] Securities Act, RSA 2000, c S-4 [ASA]. [2] Ibid, s 75. [3] Ibid, s 110. [4] Bryce C. Tingle, Start-Up and Growth Companies in Canada: A guide to Legal and Business Practice, 3rd ed (Toronto, Canada: LexisNexis Canada Inc, 2018) [Growth Companies], ch 12 at 251. [5] National Instrument 45-106 [NI 45-106]. [6] Ibid, s 2.4(1). [7] Ibid, s.2.4(2). [8]NI 45-106, supra note 5, s 2.5(1). [9] Companion Policy 45-106 [CP 45-106CP], s 2.7. [10] Ibid, s 2.8 [11] NI 45-106, supra note 5, s 2.24. [12] NI 45-106, supra note 5, s 1.1. [13] NI 45-106, supra note 5, s 2.3. [14] NI 45-106, supra note 5, s 2.10. [15] National Instrument 45-102, s 2.5-2.6. [16] Multilateral Instrument 45-106. [17] Subscription Agreement (Equity), by Practical Law Canada Corporate & Securities (Thomson Reuters). [18] Growth Companies, supra note 4, ch 13 at 279-284. Written by Zach Kennedy
JD Candidate 2024 | UCalgary Law In the unpredictable entrepreneurship landscape, not every startup embarks on a journey to success. Amidst the exhilarating pursuit of innovation, founders must also prepare for possible setbacks and losses. Effective tax planning emerges as a crucial strategy in this context, offering founders avenues to mitigate potential financial losses. By strategically navigating tax regulations, founders can safeguard their assets, optimize deductions, and minimize tax liabilities, even in the face of business challenges. Section 88(2) of the Income Tax Act (“ITA”) is one of those tax planning tools that can assist in minimizing the possible tax consequences for founders who wish to wind up their operations. "Winding-up" is used in connection with the winding-up of a business and the winding-up of a corporation's existence, whether voluntary or otherwise.[1] Imagine Bill having started such a business; as it stands the total value of the corporation's assets is $100,000, but Bill just doesn’t see a future for the business, so they wish to wind it up. Bill is the sole shareholder. In winding it up, Bill decides that they will just take back the assets from the corporation and begin winding it down. A few different things might happen to those amounts distributed back to them.
Possible Dangers of S.15 S.15 states that at any time a benefit is conferred by a corporation on a shareholder, the amount or value of the benefit is included in the shareholder's income.[2] In this case, the $100,000 of assets might simply be included back into Bill’s income, as they consist of a benefit given to them. This can represent a massive tax liability on wind-up, as the assets that may have been transferred into the corporation by the founder (who may be the sole shareholder) would be transferred back to them as a shareholder benefit. Their whole value would be taxed back as regular income. Based on top rates in Alberta, that might result in an additional $48,000 in taxes to be paid.[3] Deemed Dividends on Windup per S.84(2) Luckily, s.15 makes an exception and excludes the amounts which are deemed dividends by operation of s.84.[4] However, The language in both s.15(1) and s.84 are substantially similar – both referencing distributions for the benefit of the shareholder – it must be clear where one is operating within the ITA. Subsection 84(2) applies to either the winding-up of a business or the winding-up of a corporation.[5] On a typical wind-up of a corporation’s business, the assets in a corporation are distributed back out to the shareholders by way of deemed dividend per s.84(2). A dividend paid on a winding-up will be taxable, and such an amount must be included in the shareholder’s income.[6] This differs from s.15 in that it allows for a reduction of the value of the property distributed by the amount of the paid-up capital of the shares. This can be directly contrasted with how s.15 treats these distributions. For example, if Bill originally paid $50,000 for their shares of the corporation (and took nothing back but shares) then the shares would have a paid-up capital equal to $50,000. On the operation of s.84(2), the amount of the deemed dividend would reduce by $50,000, resulting in an income inclusion of only $50,000; half of what would be included under s.15. Easing of Taxation Under s.88(2) Finally, it may be the case that s.88(2) applies. Section 88(2) only applies where the appropriate corporate procedures are followed to bring a corporation's existence to an end.[7] Specifically, S.88(2) applies where a Canadian corporation is wound up after 1978, and throughout the winding-up, all or substantially all of the property owned by the corporation immediately before that time was distributed to the shareholders of the corporation.[8] The main benefit of s.88(2) applying is that it ensures that a corporation’s “capital dividend account,” “capital gains dividend account,” and “pre-1972 capital surplus on hand” reflect the disposition of funds or property by the corporation on the winding-up.[9] By giving access to accounts like the Capital Dividend Account (CDA), a reduction in the total amount of taxable dividends (and consequently taxable liability) can be reduced. Specifically, s. S.88(2)(a) allows the inclusion of any capital gains existing before the final distribution in the CDA.[10] The amounts in the CDA can then be declared as capital dividends and are excluded from the recipient's income.[11]For example, if a property in the corporation realized a capital gain of $25,000, half of that amount could be added to the CDA and distributed as a capital dividend. This would result in $12,500 being distributed out to Bill tax-free. Conclusion Navigating the intricacies of tax law, particularly concerning sections 88(2), s.84(2) and s.15 of the Income Tax Act, requires a nuanced understanding of applicable provisions and careful strategic planning. For any wind-up to avail oneself of the benefits under s.88(2), they may wish to take care to ensure that proper formalities are observed (such as director’s resolutions with very clear minutes) to provide evidence that a wind-up is being performed. If this isn’t done, then it may be the case that s.15 shareholder benefit provision may apply, which will result in the complete inclusion of the fair market value of the assets into taxable income. Businesses can optimize their tax positions and minimize exposure to unintended tax liabilities by leveraging the benefits of s.88(2) on wind-up while implementing prudent measures to mitigate shareholder benefits under s.15. [1] Canada Revenue Agency (CRA), Interpretation Bulletin IT-126R2 – Meaning of “Winding Up” [2] Income Tax Act, RSC 1985, c 1 (5th Supp), s.15(1). [3] Canada Revenue Agency (CRA). (2024, January 23). Income tax rates for individuals. https://www.canada.ca/en/revenue-agency/services/tax/individuals/frequently-asked-questions-individuals/canadian-income-tax-rates-individuals-current-previous-years.html [4] Income Tax Act, RSC 1985, c 1 (5th Supp), s.15(1) [5] Supra note 3. [6] Income Tax Act, RSC 1985, c 1 (5th Supp), s.84(2) [7] Canada Revenue Agency (CRA), Interpretation Bulletin IT-126R2 – Meaning of “Winding Up” [8] Income Tax Act, RSC 1985, c 1 (5th Supp), s.88(2) [9] Canada Revenue Agency (CRA), Interpretation Bulletin IT-126R2 – Meaning of “Winding Up” [10] Income Tax Act, RSC 1985, c 1 (5th Supp), 88(2)(a) [11] Income Tax Act, RSC 1985, c 1 (5th Supp), 83(2)(b) |
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