Reviving an Ontario Business Corporation

By Jonathan Hureau

Generally speaking, an Ontario business corporation that has been involuntarily dissolved may be revived through the completion and filing of articles of revival and related documentation. There are, however, numerous restrictions and requirements impacting upon the revival process that must be complied with.

As a starting point, subsection 241(9) of the Business Corporations Act (Ontario) (the “OBCA”) provides that an “interested person” (includes a director, officer and shareholder) can apply to revive a corporation that has been dissolved under subsection 241(4) of the OBCA.[1] Accordingly, the Articles of Revival to be submitted must be signed by the interested person and indicate their interest in the corporation.

It is important to note that Articles of Revival may not be filed with the Ministry of Public and Business Service Delivery (the “Ministry”) more than 20 years after the date of dissolution of an involuntarily dissolved corporation.  Indeed, if it is more than 20 years after the date of dissolution of such a corporation the revival of the corporation may only be completed by a special act of the Ontario legislature. This is also the case if the corporation was dissolved on a voluntary basis by the filing of Articles of Dissolution or if it was cancelled for cause by the Ministry.[2] As an example of the latter scenario, a corporation may be cancelled for cause in the event of “a conviction of the corporation for an offence under the Criminal Code (Canada) or any other federal statute or an offence as defined in the Provincial Offences Act, in circumstances where cancellation of the certificate is in the public interest.”[3]

In many cases, a corporation will have been dissolved on an involuntary basis. For example, such an involuntary dissolution may be due to failure to file required documentation such as annual returns or failure to pay taxes. It follows that the party applying for the revival has to make the required statements below as part of their submission:

• Any outstanding notices and returns required to be filed by the corporation under the Corporations Information Act will be filed immediately upon revival.
• All documents required to be filed by the corporation under Ontario tax statutes have been filed and all defaults of the corporation under the tax statutes have been remedied.
• The consent of any required Minister and the Public Guardian and Trustee (if applicable) to the requested revival has been obtained.
• All other defaults of the corporation to the date of dissolution have been remedied and it is not more than 20 years after the date of dissolution.[4]

In terms of the required supporting documentation for the Articles of Revival, it is important to note that a NUANS report (Ontario name search report) will be required if a corporation has been dissolved for 10 years or more.[5] This will not be the case, however, where the corporation had a numbered company name and is to be revived under the name it had at dissolution.[6] It will further not be the case where the corporation is reviving under the name it had at dissolution that is not a numbered company name and the corporation was dissolved less than 10 years ago.[7] 

While an applicant may request a preferred future date for revival that may be up to 30 days from the current date (provided the NUANS report date will remain valid, if applicable), the earliest effective date will be the date that the application is received by the Ministry in an acceptable form. A past date cannot be chosen and a NUANS report, if required, may not be dated more than 90 days prior to the date of the submission of the Articles of Revival to the Ministry.[8]

It bears mention that specific consents may be required for the revival of a corporation depending on the circumstances including from the Minister of Finance for Ontario, the Ontario Securities Commission, and the Public Guardian and Trustee in Ontario, amongst others.[9] 

Once the Articles of Revival are completed, the Ministry will issue documents including the Certificate of Revival that sets out the corporate name, Ontario Corporation Number and effective date for the revival. The Certificate of Revival is the endorsement of the copy of the official Articles of Revival that will be provided as recorded by the Ministry.[10]

Following completion of the revival, the corporation needs to ensure that it is in compliance with requirements under the Corporations Information Act[11] by promptly filing a Notice of Change to confirm director and officer information changes, the registered office address of the corporation and related information.[12]

Summary

While there are other factors and requirements that must be considered in the process of a revival for an Ontario business corporation, the purpose of this article has been to provide an introduction to the concept and an overview of the documentation that is required.

Legal Disclaimer: The above article is for informational purposes only. It does not constitute legal advice on any matter or create a solicitor-client relationship.