08 December 2017

The screws are being turned...

Ontario is reforming its labour laws once more, and this time there are some real changes to take note of. Here are what I think are the most significant ones that are happening to the Employment Standards Act, 2000. I've organized them according to when they come in force.

On Royal Assent (27 November 2017)

The following provision came into effect immediately:

5.1 (1) An employer shall not treat, for the purposes of this Act, a person who is an employee of the employer as if the person were not an employee under this Act.

(2) Subject to subsection 122 (4), if, during the course of an employment standards officer’s investigation or inspection or in any proceeding under this Act, other than a prosecution, an employer or alleged employer claims that a person is not an employee, the burden of proof that the person is not an employee lies upon the employer or alleged employer.

This is huge, for two immediate reasons:
  • this will force an employer to document, before engaging a worker, the reasons why the work is being done by an independent contractor instead of an employee
  • as the Canada Revenue Agency, in its payroll audits, follows provincial law in determining who an employee is, their work has gotten much easier as they can now demand to see such documentation to satisfy themselves as to such status

This gets better over the coming months.

1 January 2018

The following definition in s. 1(1) is amended to read:

“employee” includes, 

(a) a person, including an officer of a corporation, who performs work for an employer for wages,
(b) a person who supplies services to an employer for wages,
(c) a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees, or
(d) a person who is a homeworker,

and includes a person who was an employee;

The portion in bold replaces the current provision relating to interns and other trainees, and it looks like it removes any remaining excuses employers might have to say that training doesn't count for being paid.

1 April 2018

The following definition is added to s. 1(1):

“difference in employment status”, in respect of one or more employees, means,

(a) a difference in the number of hours regularly worked by the employees; or
(b) a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status;

Why is this important? It's because of the new provisions that have been inserted into Part XII concerning equal pay for equal work:

41.2 In this Part, “substantially the same” means substantially the same but not necessarily identical.


42.1 (1) No employer shall pay an employee at a rate of pay less than the rate paid to another employee of the employer because of a difference in employment status when,
(a) they perform substantially the same kind of work in the same establishment;
(b) their performance requires substantially the same skill, effort and responsibility; and
(c) their work is performed under similar working conditions.

(2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex or employment status.

(3) No employer shall reduce the rate of pay of an employee in order to comply with subsection (1).

(4) No trade union or other organization shall cause or attempt to cause an employer to contravene subsection (1).

(5) If an employment standards officer finds that an employer has contravened subsection (1), the officer may determine the amount owing to an employee as a result of the contravention and that amount shall be deemed to be unpaid wages for that employee.

(6) An employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the employee’s employer, and the employer shall,
(a) adjust the employee’s pay accordingly; or
(b) if the employer disagrees with the employee’s belief, provide a written response to the employee setting out the reasons for the disagreement.

(7) If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status and there is a conflict between the provision of the collective agreement and subsection (1), the provision of the collective agreement prevails.

(8) Subsection (7) ceases to apply on the earlier of the date the collective agreement expires and January 1, 2020.
Similar provisions have also been inserted to prevent the use of employment agencies to try to make an end run around these prohibitions.

What does this mean? Quite simply, too many employers were claiming that anyone who was not a permanent full-time employee could therefore be hired at a discount. This was, frankly, abusive behaviour on their part which the law has sought to punish in recent times in both the legislature and the courts. I can also see the need to express all compensation in terms of specified hours per pay period for each employee, in order to determine an hourly rate in order to show that compliance is being achieved across all such classifications of employees, whether full-time, part-time, seasonal or casual. While I disagree with the present régime at Queen's Park on many things, this time I think they got it right.

Stay tuned. I'm sure there's going to be a lot of fun seeing this come into force.

27 November 2017

Better ideas they could have used earlier

My earlier post on how governments should not consult may have been somewhat wordy, but it's time to revisit the subject now that some more sober thought is starting to be published.

The Fall Economic Statement expanded on the subject, specifically at pp. 46-56:

And last week the Parliamentary Budget Officer weighed in with its analysis of the issue:

The concern I have is that both of these documents carry useful data that should have been included in the original consultation paper. Analysis of how many Canadian-controlled private corporations (CCPCs) would not have to worry about the changes would have forestalled many emotional outbursts that were sure to have been included in the 21,000 submissions that were received. Consultations only truly work when the big picture is given a chance to be presented—theoretical examples such as the ones originally given don't properly give the target audience a chance to discuss the issues in a thoughtful and logical way.

I suspect I'll be coming back to this matter from time to time, in order to keep everyone up to date.

02 November 2017

This will have lenders worried

One of the consequences of having experience is that you can remember when things had been brutal when a company was going through financial problems. Back in the 1980s, the secured lenders were rather cavalier about how they went in to scoop assets from a debtor in collecting on their collateral, and they didn't care if anyone got stuck with remaining debts afterwards. There were too many stories I knew of back then, and I actually had to go in and work at one company that had been on the brink of shutting down before it was saved by an acquirer.

One of the more abrupt scenarios was if you were in business in Québec, where the Code of Civil Procedure allowed seizures to be undertaken by secured lenders without notice. This only changed when the federal Bankruptcy and Insolvency Act was amended in 1992 to provide a ten-day notice period before such action, which brought that province into line with the rule already in place in the common-law provinces.

Other examples of bad behaviour exist to the present day. The most egregious I've seen is when a secured lender seizes collateral before a debtor collapses, and realizes, at any price, quick proceeds by power of sale. It was standard practice that the creditor would just scoop the proceeds, and that was that.

According to the courts, that is not acceptable behaviour in the following circumstances:
  • The creditor is now required to take reasonable precautions to obtain a fair market value on the property, and, should the proceeds exceed the amount due, return the difference to the debtor.
  • It the debtor has unremitted balances of Tax/CPP/EI source deductions and/or GST/HST, and the debtor does not have sufficient funds to pay them, the CRA will now go after the lender for any amounts owing
 The first principle arose from the English case of Cuckmere Brick Co Ltd v Mutual Finance Ltd, where Salmon LJ stated:

I accordingly conclude, both on principle and authority, that a mortgagee in exercising his power of sale does owe a duty to take reasonable precaution to obtain the true market value of the mortgaged property at the date on which he decides to sell it. No doubt in deciding whether he has fallen short of that duty, the facts must be looked at broadly and he will not be adjudged to be in default unless he is plainly on the wrong side of the line.

Canadian courts have adopted a similar approach.

The latter is a consequence of jurisprudence that has only arisen in recent years, and is neatly summarized in a case decided by the Federal Court of Appeal this past summer. While such debts may (with the exception of source deductions) rank only with other unsecured creditors at the time of bankruptcy, any move to realize upon security before that point will have massive consequences, as noted here:
  • A creditor is obliged to pay proceeds from a tax debtor’s assets to the Crown whether or not that creditor is aware the debtor hasn’t remitted its taxes.
  • The creditor can be personally liable for the debtor’s GST/HST arrears
  • The Crown will now be more aggressively inclined to pursue creditors post-bankruptcy to recover amounts obtained from the debtor’s assets in pre-bankruptcy actions.
  • This will not be available with respect to certain "prescribed security interests" (generally involving real estate), but the amount of the interest must be reduced by any collateral being held as well as any payments that have been made, and the exemption will not apply where a deemed trust amount has arisen before an interest has been registered.
This will force lenders to get more documentation and assurance that debtors do not have issues that may complicated efforts to protect their security. It appears accountants will have a bit more on their plate to work on.

24 October 2017

How not to consult

I have to admit that I was one of the 21,000 who made a submission to the Department of Finance for their consultation this summer on Tax Planning Using Private Corporations. Here is a copy of what I sent:

At this particular time, unless the Department has good PDF scraping software, I doubt that anyone has even read this yet, and one columnist in The Globe and Mail has calculated that the resources needed to do it manually are too huge to be realistic. I essentially argued that the principal proposal relating to taxation of passive investments harkens back to the original concept of tax reform that was introduced in 1972, which I still believe should have been retained instead of being abandoned in 1973.

Historical background

Interestingly, the original proposal that was promoted in the 1970 White Paper called for private corporations to be treated the same as partnerships. Ottawa has scanned the original white paper to the Web, and a copy is here:

The feds backed away from that when they introduced the actual bill in 1971, and a handy summary of it is here:

 This eventually translated into the Act that implemented it all:

The intended tax on passive investments was abandoned in 1972, with retroactive effect:

What just happened now

Enough about the history. In any case, I did my civic duty, but subsequent events showed the the feds had no real intention of fully assessing the content of these submissions, and their response reeks more of panic than anything else:

All of this suggests that the initial consultation was essentially a sham. Perhaps someone may analyze the submissions some day through Access to Information requests, but I'm not holding my breath. All in all, this was a bush-league exercise, and a huge embarrassment.

Could this have been done better?

There are more sophisticated procedures that are in place elsewhere in the world, but I prefer what has been put in place in the UK, which has been summarized in a very good set of principles, available here. They can be expressed as follows:

  1. Consultations should be clear and concise 
  2. Consultations should have a purpose 
  3. Consultations should be informative 
  4. Consultations are only part of a process of engagement 
  5. Consultations should last for a proportionate amount of time 
  6. Consultations should be targeted 
  7. Consultations should take account of the groups being consulted 
  8. Consultations should be agreed before publication 
  9. Consultation should facilitate scrutiny 
  10. Government responses to consultations should be published in a timely fashion 
  11. Consultation exercises should not generally be launched during local or national election periods
I doubt that the one just held by Finance complies satisfactorily on any of these counts. It doesn't appear that anyone has even done an online search to get help on how to do so, while I was able to quickly find a great start here.

The English jurisprudence on the subject is very enlightening as well, as seen in this article. Notably, it must "take place when policies can be influenced and views genuinely taken into account," and the decision-maker must give "'conscientious consideration' to the outcome of the consultation process." Quite a contrast to what we have just witnessed.


There were extensive submissions from CPA Canada and the Joint Committee on Taxation of the Canadian Bar Association and CPA Canada that I won't reproduce here, but for which I've provided links. The latter group's package of submissions add up to more than 150 pages in total.

I've only been able to find one submission online from any of the Big Four accounting firms, in this case from Deloitte, and it's quite comprehensive. It contrasts quite sharply with my polemic, but I'm not ashamed of that.

The initial analysis coming out on Finance's panic is rather interesting. Here is the Tax Alert put out by EY this week:

The repercussions will be coming out fast and furious now.

29 June 2017

Helping people to get lit since 1975

It was purely by happenstance that I discovered that a company I had once worked for from 1985 to 1990 has just been in the news this spring, through becoming the vehicle by which a medical marijuana producer has become the first publicly listed company in Canada in that industry. The company is Maricann Group Inc.

That's rather interesting, since it was an electrical lighting fixture manufacturer and distributor when I knew it, operating as Danbel Industries Inc, a subsidiary of Noma Industries Limited ("Noma"). It was founded by two brothers-in-law, Les Bresge and Ben Shtang, back in 1975, and was taken over by Noma in 1985. The circumstances behind that acquisition are irrelevant to this discussion, as I want to explain what happened to it after I left.

That is not easy, but it was still feasible as all transactions were carried out by publicly listed companies, and SEDAR provides access to all documents of such entities back to 1997, and CIPO's trademark database was useful for disclosing another material change prior to that.


1 July: Amalgamation of Danbel with Noma Inc, a subsidiary of Noma Industries Limited and manufacturer/distributor of Christmas lights and accessories at that time. It continues operations as an operating division of that company.


9 January: Noma announces that it has reached an agreement to sell the assets of Danbel to Applied Inventions Management, an unlisted junior company then trading on the Canadian Dealer Network.


10 June: After delays relating to a dispute concerning the purchase price, Noma and AIM close the deal. Immediately prior to that, AIM assigns its rights to the acquisition to 1158478 Ontario Inc, a company controlled by Les Bresge. After the acquisition closes, 1158478 immediately changes its name to Danbel Inc.

21 December: Danbel Inc undergoes a reverse takeover with Augusta Technologies Limited, a junior company listed on the Alberta Stock Exchange. Augusta's previous shareholders are cashed out, and it is renamed as Danbel Industries Corporation.


9 December: The TSE grants approval for Danbel to transfer its listing to that exchange.


23 August: Danbel's secured lender appoints a receiver with respect to its operating subsidiaries.

6 September: The receiver assigns most of the operating subsidiaries into bankruptcy.


15 January: The receiver assigns Danbel Inc into bankruptcy.

21 January: Trade is suspended on the TSE. Cease-trade orders issued by the OSC, BCSC and ASC would continue in effect until 4 March 2011.


16 December: Name changed to Danbel Ventures Inc.


21 December: Exit of Les Bresge from the company.


21 April: Reverse takeover, described as a "reverse three-cornered amalgamation", is undertaken with Maricann Inc, a company licensed as a medical marijuana producer since 2013. Danbel changes its name to Maricann Group Inc.

24 April: Trading of Maricann shares begins on the Canadian Stock Exchange.

This constitutes the essential details, which I doubt will be covered in detail anywhere else, and may be of use if anyone pursuing a business degree wants to investigate it further. It does disclose several fascinating aspects of how public listings can be obtained rather easily on the Canadian markets.

Throughout the documentation, there are other interesting details tying together many underlying developments over the years that would be fascinating to insiders, but I will not dwell upon them here. However, they are all publicly available for people to look at.

The corporate history of Noma is also quite fascinating in itself, and deserves a separate article. That I will come back to at another time.

12 June 2017

Why structure and design matter

All too often, managers tend to get rushed into implementing things that have never been fully thought out. While smaller decisions may be more easily reversed before the damage has fully set in, decisions implementing designs with fundamental flaws will always be messy.

For example, in the mid-1990s I was involved with a company that had achieved a reputation for performing rescue work on behalf of groups of investors in real estate limited partnerships formed in the early 1980s during the property boom that was going on back then. Among the challenges they took on was a group of investors in a condominium apartment building. I won't say where, but I'm given to understand that the given situation was used elsewhere.

Its initial formation by the promoter took on a framework similar to this:

At first glance, the concept appears to have been straightforward, but you have to keep in mind the fact that real estate has always had its share of irrational exuberance, which meant that little thought was given to what to do if things went wrong. Those of us who saw this in the early 1990s saw a lot of such disasters when prices imploded during that recession. In hindsight, it was easy to see the fatal flaws:

  • The premise given by the original promoter—who the investors subsequently kicked out, appointing us in their place—was that cash flows would be stable for the foreseeable future, and the cash distributions together with tax benefits arising from initial rental losses and annual capital cost allowance deductions would be sufficient to fund the initial payout on the promissory notes, followed by the required payments to mortgages on the individual condo units. Unfortunately, the recession later on caused occupancy rates to fall, thus restricting available cash for distribution to investors.
  • There were knock-on effects once the financial institutions started exercising their power of sale, seizing individual condo units, thus removing them from the CCA pool. This was a situation that was never envisaged in the original partnership agreement and connected financing arrangements, and the concept of stapled securities did not come onto the Canadian investment scene until the beginning of this century. The lenders did not bother to take on the related partnership interests, as the mortgages did not address that circumstance, and thus the limited partners still appeared to be part of the rental pool, thus diluting cash distributions and connected taxable income available to the investors. We had to take the position that the power of sale effectively squeezed the affected investor out of the partnership, but this was the result of a very wide interpretation of the provisions relating to voluntary withdrawals.
  • There was also a problem that had resulted from the previous history relating to cash distributions to investors. The definition of "distributable cash" that appeared in the partnership agreement only contemplated that sufficient amounts had to be held back to service current liabilities, but it was silent as to whether last month's rents were to be included in the holdback. The previous general partner decided that they were not included, and distributions were overestimated during the startup years of the LP. This became ugly when we calculated what amount was needed to make things square on the investors' withdrawal, as the overdistribution meant that we had to sent a bill for an amount that was fairly close to their pro rata portion of the LMR on hand. This proved to be rather ugly, but we did manage to collect the amounts in the end.
  • The provisions relating to voluntary withdrawal presumed that the investors would take over the underlying unit tied in to their interests, withdraw from the LP, and thereafter be free to sell it or take it on and thus become a member of the underlying condominium corporation. In the interim, the general partner would exercise control over the condominium corporation based on the units still within the partnership. Because of the powers of sale that had been exercised, the general partner was thus no longer in full control, as new owners came in and started exercising their rights as members of the corporation.
  • It didn't help matters that the condominium corporation was not properly managed before we came onto the scene, and there was a further complication in that the condominium, together with two other condominiums and another developer, controlled another condominium corporation that ran a central recreation centre!
There were other bizarre aspects to this story, but they are merely tangents in comparison to the central problems outlined here. Looking back twenty years on, especially given later developments in the legal and investing fields, the following would have greatly helped the situation:

  1.  Initial income and cash flow projections should be subject to realistic simulation and sensitivity analysis, to indicate upsides and downsides of a given investment. We have certainly come a long way since that time, but the investment prospectus still tends to be a sales tool instead of a truly informative document. Back then, they weren't even handed out to investors until after they had signed the agreements! I hope things have become more sophisticated now.
  2. The partnership and financing agreements should have addressed the issue of forced withdrawals head on. In that regard, the LP interest and underlying condominium unit should have been treated as a stapled security, and seizure under power of sale should have applied to both parts. A forced withdrawal would trigger a withdrawal from the partnership, thus giving clear title for the lender to be able to dispose, but the settlement on withdrawal would be direct with the lender, which he would have to record on the statement of adjustments that must be given to the original investor. That last item has only been recently been put in place by the courts, as some lenders had previously scooped up any cash they had collected on the sale in excess of the amount of debt in question.
  3. The cash held by the LP with respect to last month's rents should be held in escrow, and only released to apply against the last month's occupancy by the relevant tenants. This would help minimize the settlement amount due on withdrawal from the partnership and thus minimize the risk of disputes. I am unsure as to why this was not normal practice at the time, given that it appears to have been standard in many other jurisdictions.
  4. The connected condominium corporation(s) should be properly constituted once the condominium declaration has been filed. This will ensure that their funds and related reserves are kept separate from those of the limited partnership, further avoiding the risk of excess cash distributions. I have since heard too many horror stories of commingled funds that had occurred in such circumstances when segregation had not been enforced.
Other improvements could also be implemented, but the above would go a long way towards avoiding the really nasty experiences from occurring any time later on.

29 April 2017

The CPA Ontario merger will finally be implemented

Interestingly, the merger is taking place as part of the 2017 Ontario Budget, and appears as Schedule 3 of its implementation bill. Apart from a mention in the budget document and a media release from CPA Ontario, I find no mention of it anywhere else. Perhaps that is because the unification agreement adopted three years ago, together with a fair bit of nationwide advertising, has dampened the passions that abounded during the several years before. However, our legislation is finally going through, leaving only the Northwest Territories and Nunavut as the final laggards.

Upon Royal Assent, the Chartered Professional Accountants of Ontario Act, 2017 will contain several provisions that are unique, in comparison to implementation legislation adopted in other jurisdictions:

  • The governing Council and officers of the Institute of Chartered Accountants of Ontario become the governing Council and officers of the new CPA Ontario. This is because the ICAO has been operating under the business name of CPA Ontario since the adoption of the unification agreement in 2014.
  • CMAs and CGAs will finally become full members of CPA Ontario. Until now, they had only been associate members of the ICAO.
  • The Certified Public Accountants Association of Ontario, which had been inadvertently abolished in July 2007 and which had been the ICAO's previous shelter for protecting the initials "CPA" in Ontario, is acknowledged only in a transitional provision that effectively provides for the transfer of the CPAAO's assets and liabilities to CPA Ontario. This effectively bypasses the law relating to escheats, but there is no provision for reviving any of the former provisions to save whatever other actions may have taken in the past ten years.
  • The disciplinary provisions extend not just to current members, but also to those whose membership has ceased due to resignation or revocation, and this covers memberships in the predecessor bodies of CPA Ontario. This is subject to a two-year limitation period from the time the event occurred. Although not specifically stated, any consequential court proceedings would be circumscribed by the limitation periods found in the Limitations Act, 2002.
  • As of the date of the 2018 Annual General Meeting, the Council will no longer be prevented from passing bylaws that would have the effect of preventing a member of a predecessor body from having "access to any aspect of the accounting profession" that they may have had through such prior membership. I am puzzled as to the rationale of this provision, or what potential effect this might have.

There are some provisions in the bill that I find highly surprising, in that parliamentary draftsmen are normally more diligent in their deliberations and more elegant in their results, and I wonder how much consideration of the wording really happened before this was brought forward:

  • There is an unusually expansive definition as to who may not call themselves an accountant. No individual who is not a member of CPA Ontario may "take or use a [protected] designation ... or initials ..., whether alone or combined or intermixed in any manner with any other words or abbreviations."  This appears to have been included because a failed attempt by CGA Ontario to bar the use of the CGMA (Chartered Global Management Accountant) designation in Ontario. It may also explain why "certified public accountant" was not specifically included as a protected designation in this bill in order to rectify the 2007 repeal of the former CPA Act. It still constitutes an extraordinary attempt to block other accounting bodies from establishing a foothold in the Province.
  • Interestingly, while the Act "does not affect or interfere with the right of any individual who is not a member of CPA Ontario to practise as an accountant", "[n]othing ... affects or interferes with the right of a person to use any term, title, initials, designation or description identifying himself or herself as an accountant, if the person does not reside, have an office or offer or provide accounting services in Ontario." This is a "cut and paste" from the previous Acts governing the predecessor bodies that was originally intended to prevent turf wars happening amongst themselves, and I wonder why this was preserved in the current bill.
  • There is no statutory definition for "accounting services", unlike what has been achieved in other jurisdictions. A definition for "public accounting services" exists in the Public Accounting Act, 2004, but that only covers a portion of what "accounting services" would encompass as a whole. That in itself will lead to problematic litigation in future.

What are "accounting services"?

It might be worthwhile to recap what constitutes "public accounting services" in Ontario. Under the Public Accounting Act, 2004, they constitute:

  1. Assurance engagements, including an audit or a review engagement, conducted with respect to the correctness, fairness, completeness or reasonableness of a financial statement or any part of a financial statement or any statement attached to a financial statement, if it can reasonably be expected that the services will be relied upon or used by a third party. Such engagements may or may not include the rendering of an opinion or other statement by the person who is providing the services.
  2. Compilation services, if it can reasonably be expected that all or any portion of the compilations or associated materials prepared by the person providing the services will be relied upon or used by a third party, but they do not include compilations that contain a notice in prescribed form that provides that any assurance given by the person is limited to the accuracy of the computations required in order to complete the compilation.
Therefore, "public accounting" in Ontario covers audit, review and compilation engagements, other than compilations accompanied by a prescribed "Notice to Reader". This begs the question as to what scope "accounting services" would cover in a more general sense. An idea as to a more comprehensive definition of "professional accounting" can be found in the BC Act:

47  (1) The practice of professional accounting comprises one or more of the following services:
(a) performing an audit engagement and issuing an auditor's report in accordance with the standards of professional practice published by the Chartered Professional Accountants of Canada, as amended from time to time, or an audit engagement or a report purporting to be performed or issued, as the case may be, in accordance with those standards;
(b) performing any other assurance engagement and issuing an assurance report in accordance with the standards of professional practice published by the Chartered Professional Accountants of Canada, as amended from time to time, or an assurance engagement or a report purporting to be performed or issued, as the case may be, in accordance with those standards;
(c) issuing any form of certification, declaration or opinion with respect to information related to a financial statement or any part of a financial statement, on the application of
(i) financial reporting standards published by the Chartered Professional Accountants of Canada, as amended from time to time, or
(ii) specified auditing procedures in accordance with standards published by the Chartered Professional Accountants of Canada, as amended from time to time.

(2) No person, other than a chartered professional accountant member in good standing, a professional accounting corporation or a registered firm that is authorized by the CPABC to do so, may provide or perform the services referred to in subsection (1).

(3) Subsection (2) does not apply to the following:
(a) a member who is not authorized by the CPABC to provide or perform the services referred to in subsection (1) or a student if the member or student is providing or performing the services referred to in subsection (1) under the direct supervision and control of a chartered professional accountant member in good standing, a professional accounting corporation or a registered firm that is authorized to provide and perform the services referred to in subsection (1);
(b) a person performing a service for academic research or teaching purposes and not for the purpose of providing advice to a particular person;
(c) an employee in relation to services provided to her or his employer or in her or his capacity as an employee of an employer that is not a registered firm;
(d) a person providing advice based directly on a declaration, certification or opinion of a chartered professional accountant member in good standing, a professional accounting corporation or a registered firm that is authorized to provide and perform the services referred to in subsection (1);
(e) a person providing bookkeeping services, consulting services or income tax return preparation and processing services that do not purport to be based on the standards of the Chartered Professional Accountants of Canada;
(f) a person acting pursuant to the authority of any other Act.

Given that BC's Act has been in place for two years already, it is surprising that this wording, with necessary modifications, was not included in the Ontario bill. Perhaps this could be rectified before passage of the bill, but I think that would be highly unlikely given the lack of interest of the current provincial Government in wanting to manage the parliamentary timetable at the Legislative Assembly. In addition, time allocation procedures that are sometimes invoked with respect to Budget bill debates may not allow for discussion as to why certain decisions were taken on the wording, or on why implementation was inordinately delayed. The overarching debate will probably dwell on more high-profile aspects of the Budget, thus distracting attention from this matter. Let's see what develops.

21 April 2017

Nonresident and speculation taxes: the return of an idea

The Grits in Ontario have announced a nonresident speculation tax that will be effective as of today, 21 April 2017. We'll have to wait until next week to see the implementing bill's details, as the Legislative Assembly is currently in recess, but the announcement can be seen here. Briefly, it will charge a tax of 15% of the purchase price upon closing, and will cover the following real estate transactions:
  •  the transfer of land which contains at least one and not more than six single family residences,
  • being acquired by an individual who is neither a Canadian citizen nor a permanent resident of Canada, or by a corporation not incorporated in Canada or which is incorporated in Canada but is controlled in whole or in part by a foreign national or other foreign corporation not listed on a Canadian stock exchange, or is controlled directly or indirectly by a foreign entity for the purposes of section 256 of the Income Tax Act (Canada).
A foreign national who receives confirmation under the Ontario Immigrant Nominee Program to immigrate to Canada, or who is conferred the status of “convention refugee” or “person in need of protection” (“refugee”) under the Immigration and Refugee Protection Act at the time of the purchase or acquisition, or who purchases a property with a spouse who is a Canadian citizen, permanent resident of Canada, “nominee” or “refugee, will be exempt from the tax.

Tax will be rebated where the foreign national:
  • becomes a Canadian citizen or permanent resident of Canada within four years of the date of the purchase or acquisition;
  • is a student who has been enrolled full-time for at least two years from the date of purchase or acquisition in an “approved institution”, as outlined in Ontario Regulation 70/17 of the Ministry of Training, Colleges, and Universities Act; or
  • has legally worked full-time in Ontario for a continuous period of one year since the date of purchase or acquisition.


We've been here before


The Land Speculation Tax

In 1974, Ontario imposed the Land Speculation Tax, which had a dramatic effect on a previous round of speculation. It had a short history, and was eliminated completely by 1979. The legislative history was as follows:
  • 3 June 1974: original imposition, retroactive to 9 April 1974, of a 50% tax on the capital gain of most real property;
  • 10 December 1974: technical amendments, together with a reduction of tax to 20%, after Ottawa refused to allowed it as a closing cost for purposes of calculating a capital gain under the Income Tax Act, all of which were retroactive to the original imposition;
  • 6 February 1975: further technical amendments retroactive to the original imposition;
  • 12 July 1977: various technical amendments, retroactive to 20 April 1977;
  • 24 November 1978: the tax ceased to be imposed as of 24 October 1977 with respect to transactions after that date, or which were in the process of being closed at that time. In addition, any statutory liens for tax liability not registered against title for any property as of 1 January 1979 were deemed to be discharged as of that date.
 Its scope was broad:
  • it covered the disposition of any real property in Ontario, other than
    • a mineral resource property, 
    • a principal residence, 
    • property less than 20 acres in size that was used as a principal recreation property,
    • property transferred from one family member to another,
    • property transferred to shareholders upon the winding up of a corporation in which more than 50% of the assets consisted of designated land,
    • a tourist resort, 
    • property upon which a building or structure was constructed (or where renovation occurred at a cost of at least 20% of the property's cost or fair market value), 
    • property disposed by a municipality, 
    • property acquired by statutory notice, or
    • property sold to the Crown or one of its agencies.
  • the proceeds of disposition consisted of:
    • the selling price of the property,
    • where transferred under the terms of an option, the total of the option price and the exercise value, or
    • the fair market value of any other type of disposition, but
    • transfer under the terms of a will was not included.
  • the proceeds were deducted from the fair market value of the property as at 9 April 1974, or at the selling price (or fair market value of the transfer) if acquired after that date, to arrive at the taxable value on which tax was charged.
  • a deduction was allowed for every 12 months the property was held, for the lesser of 10% of the starting value of the property or  the total of its maintenance costs and the closing costs upon its disposition;
  • where the land was used for farming, a further deduction of 10% of the starting value, calculated at compound interest, was allowed for periods preceding 9 April 1974 in which the property was held;
  • the liability for tax constituted a lien upon the property which did not need to be registered against title, which continued until the Minister issued a certificate that no lien would be claimed with respect to a specific disposition.
As noted at the top of this section, the effect was sudden and quite brutal, causing many deals to collapse. It was repealed at a time when mortgages shot upwards to over 20%, which proved to be a more effective damper on housing prices.

The Land Transfer Tax (nonresident rate)

This had a very interesting history.

At the same time in 1974, a rate of 20% was imposed on sales of real estate to non-residents occurring after 9 April 1974. In that regard:
  • a "nonresident person" was defined as:
    • an individual not ordinarily resident in Canada, or who, if ordinarily resident in Canada, was neither a Canadian citizen nor a permanent resident, and an individual ordinarily resident in Canada included those who had sojourned in Canada for 366 days in the 24 months preceding the transaction, those lawfully admitted into Canada for permanent residence, or members of the Canadian Forces, the foreign service or workers in an international development assistance programme required to be stationed outside Canada, including the spouses thereof;
    • a partnership, syndicate, association or any other kind of organization, where more than one-half of the members or in which beneficial interests of more than 50% of the partnership's property was held by nonresident persons;
    • a trust established by a nonresident person, or where nonresident persons held more than 50% of the beneficial interests in it; and
    • a nonresident corporation. being one where 50% of the voting rights were owned by nonresident persons or where 25% of the voting rights were owned by one nonresident person (or where direct or indirect control by one or more nonresident persons existed in such circumstances), or where more than one-half of the corporation's directors were nonresident persons.
  • such rate was also charged where a nonresident person held land in joint tenancy with a resident person, or where land conveyed to resident persons could not be readily distinguished from land conveyed to nonresident persons;
  • deferral or remission could be made where the Minister was satisfied that the land was being acquired for commercial, industrial or residential development with resale to persons who were not nonresident persons.
The scope of the tax was significantly restricted on 20 April 1977, when the nonresident rate was no longer applied to property designated under a zoning bylaw or order to commercial or industrial purposes, or was assessed for residential assessment, or was lawfully used or occupied for commercial, industrial or residential purposes. However, this did not cover land that was assessed or used for farming and agricultural purposes, woodlands, recreational land or as an orchard. The rate was finally abolished on 7 May 1997.

Then compared to now

The 1974 measures had a more pronounced effect, and were much broader in scope, when compared to the 2017 proposals. The newer ones appear to be tailored more for effect, and, dare I say, for pandering for votes in the coming 2018 election. It will be interesting to see what transpires in the coming weeks.

13 February 2017

He haunts us still...


It can be a blessing or a curse to have a distant relative who was rather famous. Take, for example, J.R. Booth, shown above, who died in 1925. To put it briefly, he was my paternal grandmother's maternal grandmother's half-uncle, and probably the richest man in Canada when he passed on. Sadly, none of that wealth came our way, although my grandmother used to brag about receiving a gold coin at Christmas from him. As she was born in 1910, there would not have been that many, and none were found in her estate when she passed away in 1997. This was another of the mysteries she took to her grave. But I digress.

His name came up in an English court case this month, because of his involvement in a company that mined for nickel. His main interests were in the  lumber industry, and he also controlled the largest railway in the world owned by a single person, the Canada Atlantic Railway. He also owned a cement company, which became part of Canada Cement in 1910. Nickel mining, however, was a completely different business. In 1915, the Ontario Nickel Commission was appointed to inquire into the province's nickel industry, and its 1917 report gives some fascinating background to what was going on. A report by the Canadian Department of Mines in 1912 also provides useful information.

Involvement with Dominion Nickel-Copper

In 1904, the Dominion Nickel-Copper Company was formed to take over ownership of the Whistle Mine, which can be seen here:

Booth, together with M.J. O'Brien and other associates,took over Dominion Nickel-Copper in 1907, as reported here. O'Brien is not mentioned in the original report, as the acquisition was attributed to the Booth and McFadden Syndicate. McFadden appears to be J.J. McFadden of Renfrew, where O'Brien also lived, so it appears one was the agent for the other. McFadden would later make his fortune after the war through lumber mills in Blind River and Thessalon.

That company bought the Murray Mine, the site of the first nickel find in the Sudbury Basin, in 1912, and sought  to revive the operation and make it a viable competitor against International Nickel, controlled by J.P. Morgan.

 Acquisition  by British America Nickel

Their reach probably exceeded their grasp, as in 1912 they later granted an option to the British America Nickel Company, formed by F.S. Pearson and controlled by the British Government and Kristiansand Nikkelraffineringsverk A/S of Norway, to take over the company. British America also controlled other copper-nickel interests in the Sudbury region, including the later-famous Falconbridge properties. That option was exercised in 1913. The extent of the deal was detailed in a report in the Canadian Mining Journal:

Note the significant players mentioned here. William Mackenzie was involved in the successful deal with Pearson—understandable, as the two were already associated together in Brazilian Traction, Light and Power—but the Guggenheims of New York wanted to get in instead. This was quite the rarified atmosphere, even back then. The original name "Canadian Nickel Corporation" was not used, as the actual incorporation papers were in the name of "British America Nickel Corporation, Limited" as reported here.

What made British America's business model unique was that they aimed to be the only nickel miner in Ontario that would also smelt and refine on site, instead of sending the ore for further treatment outside the Province. It would also have exclusive North American rights to the Hybinette smelting process developed by its Norwegian investor.

As a result of the 1913 disposition, J.R. Booth became the second-largest bondholder in British America, second only to the British Government itself. O'Brien, with some others, had much smaller amounts. There was also an issue of debenture stock secured by a floating charge, which was held by the British Government and the Norwegian company. It was that whole arrangement that would cause some awkward circumstances later on.

In 1916, the British Government signed a ten-year contract to purchase all the nickel output of British America, and the bonds were replaced by a new issue of mortgage bonds, secured by the assets of the company. The terms of the underlying deed of trust could be altered at any time by a vote of the bondholders, representing at least ¾ of the bonds' value.

The dispute

At the end of the war, the nickel market took a real beating, and the Canadian Bank of Commerce was granted a prior lien bond in 1920 which had priority over the mortgage bonds. British America then defaulted on an interest payment in 1921, and a reorganization was proposed, in which the mortgage bonds would be replaced by 'A' Income Bonds, which would have a lower priority to First Income Bonds having a first charge on the property of the corporation. 'B' Income Bonds could be issued later on which would rank pari passu with the 'A' Income Bonds, but the latter could be converted into other securities at any time through extraordinary resolution. The remainder of the supply contract with the British Government would also be cancelled. A committee of four people would be appointed to make the decision, thus bypassing any requirement of an extraordinary resolution by the bondholders.

In order to make this work, J.R. Booth had to give his support, because of the significant holding of bonds he had. He was induced to approve, after being promised a gift of shares bearing a par value of CAD 2 million in British America.

O'Brien, to put it mildly, was not a happy camper. This move would strip any real security from the bonds he held, and the possibility of later conversion into other securities could effectively make them worthless if any other adverse developments in the nickel industry were to happen. He took the matter to the Supreme Court of Ontario to get the result overturned. He won, and the result was later upheld at the Appellate Division of the court. Both rulings can be found here.

That was not the end of it. The final court of appeal in those days was the Judicial Committee of the Privy Council, and they upheld the Ontario courts in 1927.  They described the whole affair thus:

At the trial in the Supreme Court of Ontario Kelly J. held that what was really done was that the majority at the meeting did not act in the bona fide exercise of the rights which the majority might exercise, but in consideration of what would benefit the Nickel Corporation and the personal interests of those whose votes were to be secured. The vote had been influenced by special negotiations in advance of the meeting. … There was an appeal to the Appellate Division, where Ferguson J.A. delivered the judgment. He agreed with Kelly J. in holding that the votes neither of Mr. Booth nor of the British Government would have been given for the scheme had they been influenced only by what was most in the interest of the bondholders. Both of these may, he thought, have acted honestly if mistakenly. But what really moved them was not a legitimate consideration of the improvement of their security, but that they felt that a refusal to approve the scheme would result in serious loss to other persons who had lent to or invested in the corporation. They wished to give these persons a chance, even if a risk to the bondholders had to be taken in doing it. This the Appellate Division held to have been improper.

The law that governs this type of decision-making has consequentially been expressed in these terms:

To give a power to modify the terms on which debentures in a company are secured is not uncommon in practice. The business interests of the company may render such a power expedient, even in the interests of the class of debenture holders as a whole. The provision is usually made in the form of a power, conferred by the instrument constituting the debenture security, upon the majority of the class of holders. It often enables them to modify, by resolution properly passed, the security itself. The provision of such a power to a majority bears some analogy to such a power as that conferred by s. 13 of the English Companies Act of 1908, which enables a majority of the shareholders by special resolution to alter the articles of association. There is, however, a restriction of such powers, when conferred on a majority of a special class in order to enable that majority to bind a minority. They must be exercised subject to a general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities; namely, that the power given must be exercised for the purpose of benefiting the class as a whole, and not merely individual members only. Subject to this, the power may be unrestricted. It may be free from the general principle in question when the power arises not in connection with a class, but only under a general title which confers the vote as a right of property attaching to a share. The distinction does not arise in this case, and it is not necessary to express an opinion as to its ground. What does arise is the question whether there is such a restriction on the right to vote of a creditor or member of an analogous class on whom is conferred a power to vote for the alteration of the title of a minority of the class to which he himself belongs.

In other words, no dirty tricks are allowed in proceedings like these, and decisions must be taken in the best interests of the class of investors. But some people just can't help but try.

Consequences to this day

That is what happened in the English case this month. Two companies were seeking to merge under a scheme of arrangement, which under English law must receive the approval of a majority of investors, together representing ¾ of the value of the shares. In order to thwart the merger, one employee shareholder gave away one share each to 434 people, and registered the transfers immediately prior to the meeting taking place to approve the scheme, as sanctioned by the Court. All 434 intended to vote against the transaction, but the Chairman of the meeting disallowed their votes, resulting in the scheme's approval. The Court ruled that the Chairman acted properly, and what J.R. Booth did in the 1920s was quoted prominently to explain why this had to be so.

It was explained here that meetings that are sanctioned by the Court operate under slightly different principles than shareholders' general meetings that are governed by normal corporate legislation:

50. There was some debate also in the course of argument as to the powers of the chairman of a court meeting to reject votes cast of his own motion. It seems to me that the court must indeed have an inherent power to direct the mode in which meetings are to be held .... Moreover, once a court has directed that a meeting take place, I cannot see why the chairman should not conduct the meeting in accordance with normal principles. He may have many decisions to make in order to achieve the objective of the meeting. The court would normally, I think, only interfere with such decisions if they were perverse, made in bad faith, contrary to the court's directions, or on the basis of a mistaken understanding of the law .... It seems to me that the validity of votes cast at the court meeting is to be judged as at the time of that meeting and not with the benefit of hindsight that may be acquired after the meeting and before the sanction hearing. Conversely, the sanction of the court is to be evaluated as a matter of discretion on the basis of all the facts placed before the court at that hearing.

51. In directing the chairman to hold a court meeting, the court is effectively directing him to take all appropriate steps to hold a fair meeting for the purpose of ascertaining the votes of the class for or against the scheme. He must, for example, be able to reject proxies if they obviously do not emanate from the member in question. The court would, it seems to me, wish to respect the decisions made by its appointed chairman as to the proper conduct of the court meeting, unless one of the defaults mentioned above were established. 

I've known meetings in the past where such squeeze plays breezed through quite easily. It's obvious these days that such unfairness will not be tolerated, but it's taken some considerable time and effort to get there. Not just the lawyers, but all other parties, should be glad that's the case.