New Canada Not-for-profit Corporations Act – Transitional Provisions
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A recent Ontario Superior Court of Justice decision is a good example of how the courts can grant relief to minority shareholders of a family business where there has been unfair conduct denying reasonable expectations.
The relevant facts of Tannenbaum v. Tanjo Investments Ltd. are quite simple. There were seven shareholders in a family business. One shareholder (the Applicant in the case) owned 1/3rd of the shares. The other shareholders each owned 1/7th of the shares. The Company paid dividends equally to each shareholder regardless of the fact that the Applicant owned three times the shares of the others. The Applicant applied to court under the oppression remedy.
The Court ruled that the reasonable expectation of a shareholder is to receive dividends proportional to their holdings. As a result the company was Ordered to compensate the Applicant accordingly.
Connolly Nichols Allan & Snelling is an Ottawa law firm. We are Ottawa Lawyers who regularly represent minority shareholders in family business disputes. We have succeeded in using the oppression remedy to enable our clients to assert their rights to their just entitlements time and again.
To read the full reasons in Tannenbaum v. Tanjo Investments Ltd. click here: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii48526/2009canlii48526.html
Frequently Asked Questions
How do partnerships work and how are they setup?
My friend and I have an idea for a business and we are considering forming a partnership. How does a partnership work and how should one be setup?
Whether or not a partnership exists is a fundamentally a legal question. Ontario’s Partnerships Act says that a relationship between “persons carrying on a business in common with a view to profit” is a partnership within the meaning of the Act. This is important because it means that whether or not you declare yourself to be a partnership, legally speaking, you might be a partnership anyways, whether you intended to or not.
A partnership can exist between you and your friend personally, or even as between two corporations controlled by each of you. Unlike a corporation, however, a partnership has no separate legal existence from the partners themselves and each partner has the power to bind the partnership and each partner is jointly liable for any obligations incurred on behalf of the firm. This is why, when deciding to form a partnership, a partnership agreement can be very practical.
A partnership agreement sets out the rights and obligations for partners in the partnership and provides for what should happen in circumstances of partnership incapacity, retirement or death. Without one, the Partnerships Act will provide for what happens to the partnership in these circumstances, often with unintended results. A partnership agreement can also provide mechanisms for the distribution of partnership income and a process for bringing additional persons into the partnership. Creating a partnership agreement that meets your goals with the help of a commercial Lawyer ensures that your partnership will continue in a manner of your design.
Do I really need to have annual minutes?
I have a corporation the shares of which are held only by me and members of my immediate family. Do I really need to have annual minutes?
If your corporation is audited by the CRA and matters, such as the declaration of dividends, have not been formally documented by a written resolution of the directors or in annual minutes, the consequence can be severe. There are other risks that may be avoided by having minutes prepared annually. This is analogous to your dentist who encourages you to have good dental hygiene and periodic check-ups so that small problems do not become big problems. Practicing good corporate hygiene just makes good sense.
The minimum legal obligation of a corporation is to hold an annual meeting of shareholders to consider the financial statements, elect directors and to appoint (or dispense with the appointment of) the auditor. In practice, and as permitted by statute, narrowly held corporations often dispense with an annual meeting in favor of signed resolution of all of the shareholders. The failure to hold annual resolutions, or obtain written resolutions in lieu, can lead to legal action from disgruntled shareholders.
The practice of holding annual meetings (or resolutions in lieu) also tends to ensure that corporate matters requiring attention are addressed, such as share transfers, changes to directors, and address changes, which if left unaddressed could become significant problems.
An effective method of ensuring good “corporate hygiene” is for the corporation to instruct its accounting advisors to provide legal counsel with an annual letter of instructions to document applicable financial matters.
It is not uncommon that a new client brings us a minute book that has not been properly organized, or that has not been updated for many years. It is not a cause for embarrassment. We strongly encourage that the minute books be updated before an issue arises, such as a CRA audit.
Should a lawyer review your small business contracts?
I run a small business and I have several small contracts that I am currently in the process of negotiating. Are these worth bringing to a Lawyer for review?
Depending on the type of contract, there are a number of areas a Lawyer’s expertise can provide guidance, including contracts relating to employment or contractor relationships, borrowing and secured transactions, equipment leases, and other commercial agreements. Simply because a document is short, this does not mean there aren’t important clauses or terms that require careful consideration.
Contracts often contain important clauses relating to the limitation of liability, indemnification, and the waiver of important legal rights. Such clauses can have legal and financial implications for you or your business down the road. Understanding these implications is crucial and one of the services a Lawyer can provide.
A Lawyer can meet with you for a short consultation in order to review your contractual document and answer any questions you might have. By communicating to the Lawyer your expectations of the proposed contract, a Lawyer can work with you to achieve your goals as well as highlight and help you understand risks and liabilities that you or your business may be taking on as part of the contract.
If you have some questions about a contract and feel you may benefit from meeting with a Lawyer call and ask to set up a meeting.
