Tax & Trade Blog

Times are changing for Canadian private corporations in terms of transparency and publicly available information. As of October 1, 2020, private companies in British Columbia have been required to maintain a registry of beneficial owners. Similarly, Québec’s transparency registry statute received Royal Assent on June 8, 2021. The Federal Government has also announced in its 2021 Budget that a publicly accessible beneficial ownership registry would be in place by 2025.

Not to be outdone, Ontario has joined the growing number of Canadian jurisdictions “pulling back the curtain” on private corporations, with plans to impose its own rules for registering beneficial ownership (the “Ontario Rules”). With the Ontario Rules set to come into force on January 1, 2023, the province will likely “leapfrog” the Federal Government.

NEXUS is a bi-national, Canada-US privilege program for pre-approved, low-risk travellers, allowing them to enter either country’s ports of entry swiftly.

Recently, however, thousands of NEXUS cards from Canadian and US citizens, have been confiscated either by the Canada Border Services Agency (“CBSA”) or U.S. Customs and Border Protection (“CBP”) – often for minor infractions.

Generally speaking, this administrative action can and should be challenged!

The January 2020 Canadian International Trade Tribunal (“CITT”) decision in Landmark Trade Services v. President of the CBSA (Case No. AP-2019-002) was a welcome relief for customs brokers because the CITT held that Landmark (acting as a customs broker for what can loosely be described as a freight-forwarding situation) was not liable as the "importer" of the goods, despite the fact the import documentation described Landmark as the importer and purchaser. Accordingly Landmark would not be on the hook for the additional duty owing from the incorrect tariff classifications used on those import documents.   

Over a year later, Landmark's victory has resulted in headaches for businesses that use similar freight-forwarding structures, as the CBSA looks to re-assess them and hold them liable for additional duty on the basis they were the owners of the goods at the time of import. To understand why, one must understand what Landmark was doing.

The Government of Ontario has now made a long-hoped for change to the Ontario Business Corporations Act (“OBCA”) removing the director residency requirement effective July 5, 2021.

This means that corporations incorporated or continued into Ontario no longer need to have any Canadian resident directors and will help put Ontario on a level playing field with provinces like British Columbia which have been without a director residency requirement for nearly two decades!

Canadians and travellers into Canada may be pleased to learn that Canadian border officials do not have unlimited powers to search the contents of their electronic devices when entering the country.

The Alberta Court of Appeal (ABCA) reached this conclusion last year in the case of R v Canfield (2020 ABCA 383), finding that the relevant search powers in the Customs Act were unconstitutional to the extent that they allowed for unlimited searches of personal electronic devices.  Recently, the Supreme Court of Canada (SCC) dismissed the application for leave to appeal Canfield, meaning that the ABCA’s decision stands.