This blog post was prepared in substantial part by Ciara Sprance
Although there are a few means through which an American LLC could possibly elect to conduct business in Canada, the most popular method (and the one dealt with herein ) is through extra-provincial registration, a term which encompasses the registration process by which foreign companies (from the U.S., U.K., China, etc.), federal companies (i.e. Canada in its capacity as the central government), and companies from other provinces of Canada may carry on business in a given province.
Canada, as most people are aware, is made up of ten provinces and three largely self-governing (but non-sovereign) territories united in a federal system. Each province controls what businesses can and do practice within its borders and, as we will see, they are especially protective of their consumers. Like the States, the provinces frequently differ in how they accomplish these goals and as result, can sometimes draft conflicting and confusing policy. Add to this the fact that domestic LLCs do not exist in Canada, as there is no LLC statute (provincial or federal), and this makes Canadian registration of an American LLC appear an overwhelming task – but in fact, the process is far simpler than it seems.
General note: One of the most notable differences between Canada’s “extra-provincial registration” and America’s analogous “foreign qualification” is the name requirement. The strictures on naming your LLC in Canada are far more onerous than any comparable requirements in the U.S. Each province, to some extent, requires a search of a proposed LLC’s name through publicly-available registries such as the Newly Upgraded Automated Name Search (NUANS) or individual province-specific databases, which are then still subject to approval. But the restrictions go beyond just assuring there is no company of the same name – there may be additional rules on whether and how long the names of entities no longer existent are considered to conflict, whether or not another entity can consent to your usage of a similar name, or whether the name adequately reflects the purpose of the LLC.
Typically, this name reservation must be completed and approved prior to filing for registration within the province.
Newfoundland and Labrador
Like many provinces, Newfoundland and Labrador does not make specific mention of limited liability companies, but instead groups them under their statutory definition of “extra-provincial company,” which allows for “limited companies.” Per the Corporations Act, R.S.N.L. 1990, c. C-36, s. 438, an American LLC must:
Conduct a name search and submit a name request for approval prior to filing.
- NL provides various resources for this purpose, including its own Companies and Deeds Online (CADO)
Upon approval, submit to the Registry of Companies the following forms:
Statement for Registration
- Must also include a certified copy of the “constating documents” (for DE LLCs, this definitely includes the Certificate of Formation and perhaps the LLC Agreement)
- Formal certified document evincing a solemn declaration that the statements contained in the registration document are true
Power of Attorney
- Appoints an attorney for service of process within NL
- Statement for Registration
As an aside, the corporate taxation in NL is particularly attractive to American LLCs who, when registered in Canada, lose the benefit of the flow-through taxation they receive in the States.
Alberta does not recognize LLCs as their own category but, like NL, enfolds them into its definition of corporation, where they are functionally the same for registration purposes. Per the Business Corporations Act, R.S.A. 2000, c. B-9, Part 21, an American LLC must:
Obtain and submit an Alberta-biased NUANS report for name approval
- Must be less than 91 days old and contain all pages
Submit the following items/forms:
- Statement of Registration
- Notice of Attorney (appointed for service)
- If applicable, Notice of Assumed Name (in the event your name is not approved, you may choose an “assumed name” under which to operate in Canada)
- Certified formation documents, such as a Certificate of Formation
An important notice: Alberta is relatively unique in that it has outsourced its corporate registry services to third party firms (“authorized service providers”) who, for a fee, will receive and review an extra-provincial LLC’s documents, then issue a Certificate of Registration. On its own behalf, an American LLC must find, engage, and pay such a firm for its services.
British Columbia may be the only province that recognizes U.S. Limited Liability Companies, if not as statutory legal entities in their own right, as a discrete class of entities that might wish to register in BC as an extra-provincial company. That being said, the registration process and forms are the same as those for corporations. Per the Business Corporations Act, S.B.C. 2002, c. 57, Part 11, an American LLC must:
Conduct a name search and submit a name request for approval before filing
- The name search and request can be completed online through BC’s own Registry Services; NUANS is an option, but not a requirement
Upon name approval, submit by mail to the Corporate Registry:
Registration Statement (including attorney information)
- Like most other provinces, if the LLC is not headquartered in BC, it must appoint an attorney to function as their agent for service within the province
Proof of existence from home jurisdiction
- A certified copy of a Certificate of Formation or a Certificate of Good Standing, dated within the year
Business Number Request Form
- Only implemented by a few provinces in the extra-provincial registration process; the number serves as unique identifier in company communications with provincial and federal governments
- Registration Statement (including attorney information)
In Québec, all corporations are understood and referred to as “legal persons.” LLCs, by virtue of their separate legal entity in their home jurisdictions, are included in that broad definition and are therefore treated the same as corporations. However, the process itself is very different from other provinces, which is owed in part to the requirements of the Charter of the French Language, C.Q.L.R. c. C-11. It is a domestic statute that otherwise curtails the benefit of doing business with a country with no language-barrier, because all business, including the extra-provincial registration process, is conducted in French as the official language of the province.
Per the Act Respecting the Legal Publicity of Enterprises S.Q. 2010, c. 7, an American LLC must:
Conduct a free name search through the Centre Informatique du register des entreprises du Québec (CIDREQ), if the LLC opts to register under a name rather than a number assigned by the registrar
- Filing for name reservation is optional
File the Initial Declaration for a Legal Person
- Therein, an LLC must include a French version of its name in addition to the original home jurisdiction name.
- Designate an attorney residing in Quebec for service of process, unless the Enterprise Registrar exempts the LLC from this (see Id. at s. 26.)
Ontario is the only province that recognizes and treats LLCs differently from corporations in the extra-provincial registration process. LLCs do not register as corporations or even at all, under the same statute. LLCs are instead made to register under the Business Names Act and treated akin to Limited Liability Partnerships (“LLP”). Perhaps predictably, the process is more concerned about registering the business name, than it is the business. Per the Business Names Act, R.S.O. 1990, c. B.17, you must:
Search the public record for the proposed name
- NUANS is optional, but not required
Submit Form 6 to register the name
- Must be renewed every five years
Like Alberta, Ontario advertises third-party service providers; unlike Alberta, however, Ontario has not outsourced its registry work to the extent Alberta has, at least with regards to extra-provincial registration. An American LLC is under no obligation to enlist a service provider, unless it so chooses.
See Ontario's website for more information.
Other Provinces and Territories
The remaining provinces bar one (Manitoba, the Northwest Territories, Nunavut, Saskatchewan, Yukon. New Brunswick, and Nova Scotia) all resemble Newfoundland and Labrador in their extra-provincial registrations: a name search/request, a registration application, an attorney for process, and supporting documents. Prince Edward Island is perhaps the only notable dissident; it is like Ontario in that it requires neither attorney for process nor formation documents, but unique in that it has no provision for name approval.
Because the system for creating and establishing LLCs in America does not exist in Canada, as such, its terms do not perfectly synchronize with Canadian legal language and frames of reference. Therefore, some of the provinces use conflicting terms in their statutes and on their official websites. For instance, what is meant by formation documents is not always clear from the language used, to the extent that the statutes apply corporation language (charter, articles of incorporation, shareholder agreement, etc.) instead of LLC terms (certificate of formation, certificate of good standing, LLC agreement, etc.). The best course of action, apart from enlisting a Canadian attorney or service provider directly, is to over-prepare, rather than underprepare, the documents. Include any and all documents that might relate to the formation of the LLC.
Furthermore, the near universal name search/approval requirements should put American LLCs on notice that they should be familiar with the target province’s name policy and ensure that their names comply. The filing process, including name searches, can be an expensive one and until the registration is completed, the LLC cannot conduct business in Canada. So, best get it in one.