Correction of articles and certificates

Purpose

This policy explains how to apply to correct articles and certificates that have been issued under the Canada Not-for-profit Corporations Act (NFP Act).

Note

This policy is intended to provide information and set out guidelines. It is not to be a binding statement of what decision will be made on a particular application. It is also not intended to replace legal advice. You may wish to consult a lawyer or other professional to ensure that the specific needs of your not-for-profit corporation are taken into consideration when making an application.

Effective date

October 17, 2011

Authority of the Director to correct an error in the articles or certificate

The NFP Act gives the Director appointed under the NFP Act the discretion, under certain conditions, to correct an error made in the articles or certificate of a not-for-profit corporation in certain situations.

Correction when the error is obvious

An error is obvious when it is evident from reviewing the articles or the certificate what was intended, e.g., when a corporate name is misspelled as in: "ABC Librarian Centre/Centre des vibraires ABC".

In the case of an obvious error, the Director will correct the articles or certificate upon receiving a written request for correction. The request should include the following:

  1. an explanation of the error;
  2. the certificate and the corrected replacement pages of the articles, if applicable;
  3. if the error relates to the corporate name and the corporate name has not been used: a statutory declaration by a director or officer (or the incorporators where no organizational meeting has been held) stating that, to the best of his or her knowledge after diligent enquiry:
    1. that no use has been made of the incorrect name (or referred in an other document);
    2. the corporation has not signed any security agreements or any other document using its incorrect name; and
    3. no filings have been made under any personal property security legislation in Canada, against the incorrect corporate name;
  4. if the error relates to the corporate name and the incorrect corporate name has been used (for example in a contract between the corporation and a supplier), attach the written consent to the correction from anyone dealing with the corporation on the basis of the incorrect corporate name;
  5. the fee.

Correction when the error is not obvious from the articles or the certificate themselves

Usually an error is not obvious when the error relates to words or numbers indicated in the articles or the certificate. For example, the Articles of Incorporation indicate that the minimum number of directors is 1; however the original intent of the incorporators was to indicate 5 as the minimum number of directors.

In the case of an error that is not obvious, the Director will review the application and may, at his or her discretion correct the articles or certificate. The Director may correct the error only if the following conditions are met:

  • the correction is approved by the directors of the corporation (or the members acting in accordance with a unanimous members agreement, or the incorporator where no directors have yet been appointed); and
  • the Director is satisfied that:
    • no members or creditors would be adversely affected by the correction; and
    • the correction reflects the original intention of the corporation or the incorporators.

The Director does not correct errors in judgment. For example, no correction will be approved after a Certificate of Amalgamation is issued and the corporation realizes that the amalgamation was not a good decision or would like to replace one of the amalgamated corporations.

The written request must include the following:

  1. the certificate and the corrected replacement pages of the articles, if applicable.
  2. a statutory declaration of a director or an officer (or the incorporators where no organizational meeting has yet been held) which includes the following statements:
    1. that the correction was approved by the directors of the corporation (or the members acting in accordance with a unanimous members agreement, or the incorporators where no directors have yet been appointed);
    2. that an error was made and an explanation as to how it was made;
    3. that the removal of the error by articles of amendment or other available means would cause undue hardship;
    4. that no members or creditors would be adversely affected by the correction and the correction reflects the original intention of the corporation or the incorporators, as the case may be; or if the correction may have an affect on the members or creditors of the corporation, a description of the effect the correction would have; 
    5. if the correction relates to corporate finance: information regarding who are the debt obligation holders before and after the issuance of the certificate, as well as the principal amount of each outstanding debt obligation before and after the correction;
    6. if the correction relates to the classes or groups of members set out in the articles: information regarding the impact on the members in those classes or groups before and after the correction;
    7. if the error relates to the corporate name and the corporate name has not been used (see "c." below if it has been used):
      1. that no use has been made of the incorrect name (or referred in an other document);
      2. the corporation has not signed any security agreements or any other document using its incorrect name; and
      3. no filings have been made under any personal property security legislation in Canada, against the incorrect corporate name;
    8. if the correction relates to the date of the certificate and the date has not been used (see "d." below if it has been used): a statement indicating that no use has been made of the incorrect effective date.
  3. if the error relates to the corporate name and the corporate name has been used (e.g., in a contract between the corporation and a supplier): attach the written consent to the correction from anyone dealing with the corporation on the basis of the incorrect corporate name;
  4. if the error relates to the date on the certificate and that date was used: attach the written consent to the correction from anyone dealing with the corporation on the basis of the incorrect effective date;
  5. if the articles or the certificate to be corrected were issued over two years prior to the request for correction and only if requested by the Director, a resolution of the members authorising such correction;
  6. a certified copy of the original resolution authorising the intended amendment or other fundamental changes incorrectly reflected in the articles or the certificate;
  7. if the error was made, not by the corporation itself, but by its representative to whom it had given correct instructions, the Director may, at its discretion, correct the document upon receipt of all documents mentioned in paragraphs (a) to (d) above, and:
    1. a statutory declaration of the representative indicating the instructions received and the reasons why those instructions were not reflected in the articles or the certificate; and
    2. a statutory declaration of a director or an officer of the corporation (or the incorporators where no organizational meeting has yet been held) explaining why it is not possible to obtain the declaration mentioned in subparagraph (i) above, the instructions given to the representative and why the instructions were not reflected in the articles or the certificate;
  8. the fee.

Correction when an error was made solely by the Director

An error that was made solely by Corporations Canada staff is an error that was committed by Corporations Canada staff while handling a request (e.g., a typo on a certificate or the certificate effective date is not the date specifically requested by the applicant).

When the error was solely made by Corporations Canada staff, the applicant should send a correction request in writing explaining the error with contact information. There is no payment required.

Despite the fact that the error is solely due to Corporations Canada staff, the Director may require additional information in order to be able to make a decision. In such cases, the Director will contact the applicant and indicate the documents required. If the Director does not receive the information, the request for correction will be considered abandoned.

Correction initiated by the Director

The Director can also initiate the process of correction for the articles or certificate. In this case, the Director may require the directors and members of the corporation to make the necessary resolutions, to send any documentation required to support the correction, and to undertake any other measures in order to allow for the correction.

If the Director initiates the process for the correction of articles and certificate, the corporation will receive a notice from the Director explaining the error and why the correction is requested. If applicable, the notice will indicate a list of documents required.

Documents that cannot be corrected

The NFP Act does not permit the following documents to be corrected:

If the information provided on the directors or the registered office address is not accurate, the corporation must correct the information as quickly as possible by submitting a new Form 4003: Change of Registered Office Address, or Form 4006: Changes Regarding Directors.

If the information provided in the annual return contains an error, the Director recommends that an amended Form 4022: Annual Return be submitted with "Amended" indicated on the form.

Date on the corrected certificate

The corrected certificate will bear the date of the document it replaces. However, if the correction specifically involves the date, the document will bear the corrected date.

Public record of the corporation

All documents filed with the Director, including those containing errors, are public records. No form or other documents, irrespective of any errors, will be removed from these records.

Court order and appeal

The Director, the corporation, or any interested person may apply to the court for a correction of the articles or certificates. There are no restrictions on what a court can order, although it will usually address whether or not the correction is to be carried out and establishes the right of members or creditors of the corporation.

An interested person who feels aggrieved by a decision by the Director to correct or to refuse to correct, the articles or the certificate, may also apply to a court for an order requiring the Director to change the decision. The court has the power to order a change in the Director’s decision.

Related Information

Legislatives References

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