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What Does Bill 78 Mean for Your Business? Navigating Ultimate Beneficiary Declarations in Quebec

New corporate transparency laws have been in effect since March 31st, 2023 under Bill 78, An Act mainly to improve the transparency of enterprises. Since then, we have guided clients in navigating new requirements. Notably, businesses are now required to declare their ultimate beneficiaries. This has been at the forefront of many of our client consultations so we decided to publish a blog post to help you understand your obligations.


Who is Impacted By the Ultimate Beneficiary Rules?


Every entity that is registered with the Registraire des entreprises (the “REQ”) is required to declare information about its ultimate beneficiaries. This includes sole proprietors, corporations, partnerships, and trusts, whether or not either of them was created in Quebec. In other words, foreign and extra-provincial companies doing business in Quebec that are registered on the REQ are required to make a declaration regarding the ultimate beneficiaries of their companies.

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Who is the Ultimate Beneficiary?


An ultimate beneficiary is an individual who has the right to benefit from a portion of the income or assets of a business or has a right to influence its activities. Bill 78 is only concerned with individuals who hold 25% or more of the voting rights or fair market value in a company.


The ultimate beneficiary of a company is someone who:

  1. Voting Rights: Controls or holds, even indirectly, or is a beneficiary of, enough shares or units in the company that grants them the power to exercise 25% or more of the voting rights;

  2. Fair Market Value: Controls or holds, even indirectly, or is a beneficiary of, a number of shares or units whose value corresponds to 25% or more of the fair market value of the overall value of the company’s shares or units;

  3. Influence: Has any direct or indirect influence that, if exercised, would lead to effective control of the company. This influence is analyzed according to sections 21.25 and 21.25.1 of the Taxation Act;

For instance, consider Jane, who owns 30% of XYZ Corporation’s voting shares. Jane’s ownership interest grants her more than 25% of the voting rights, making her the ultimate beneficiary.


Sometimes, the ultimate beneficiary can be a legal person. For example, in the fictional city of Techhaven, Luminary Dynamics is a publicly traded tech leader who owns shares in Quantum Innovations, a rising private AI company. Their shares confer upon Luminary Dynamics 25% of the voting rights in Quantum Innovations, making it the ultimate beneficiary.


Most importantly, there can be more than one ultimate beneficiary and every single one must be declared on the REQ.


For sole proprietors, the individual operating the company is presumed to be the ultimate beneficiary of the company (unless otherwise designated by the owner).


For general partnerships, the general partner, or if they are not an individual, the person that meets the conditions listed above in paragraphs a) to c) is the ultimate beneficiary.


In other cases, the individual acting as the trustee of the entity registered on the REQ is considered to be its ultimate beneficiary.


Who is Exempt from Declaring an Ultimate Beneficiary?


Certain entities are exempt from declaring an ultimate beneficiary. This is the case for:

  1. non-profit legal persons established for a private interest;

  2. legal persons established in the public interest;

  3. reporting issuers within the meaning of the Securities Act (chapter V-1.1);

  4. financial institutions referred to in paragraphs 1 to 3 of section 4 of the Insurers Act (chapter A-32.1);

  5. trust companies governed by a provincial or federal statute or a statute of another province or territory of Canada;

  6. banks and authorized foreign banks listed in Schedules I, II, and III to the Bank Act (S.C. 1991, c. 46); and

  7. associations within the meaning of the Civil Code.

What Information Will be Released to the Public?


The following information regarding the ultimate beneficiaries must be declared to the REQ:

  1. The individual’s full name

  2. Other names used in Quebec (such as a pseudonym)

  3. Their date of birth

  4. The date on which the individual became an ultimate beneficiary (and the date on which they ceased to be an ultimate beneficiary, as the case may be)

  5. Their residential address

  6. The criteria under which they are the ultimate beneficiary (see “Who is an ultimate beneficiary” section above)

The date of birth will not be published online. Furthermore, if an individual declares a professional address, then the residential address is also concealed from the online registry. For ultimate beneficiaries who are minors, their names, pseudonyms, and residential addresses will also be concealed. As a replacement only a mention of their existence is published on the enterprise register.


Conclusion


Navigating the intricacies of the new corporate transparency laws, as outlined in Bill 78, is a crucial step for businesses in Quebec. Understanding who qualifies as an ultimate beneficiary and the associated declaration requirements is paramount in ensuring compliance.


At Astre Legal, we've been steadfast in guiding our clients through these regulatory changes. If you have further questions or require assistance in fulfilling your obligations, we are here to help.



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