B.C Land Owner Transparency Register

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URGENT: B.C. LAND OWNER TRANSPARENCY REGISTER (“LOTR”)

We write to advise that effective November 30, 2021, the B.C. Government requires that
any Corporation, Trust or Partnership that owns an interest in real estate must file a
Land Owner Transparency Report with the Land Owner Transparency Registry.
Failure to file may result in government-imposed penalties.

What is the Land Owner Transparency Registry?

The Land Owner Transparency Registry is a publicly searchable registry of information about
beneficial ownership of land in British Columbia. Beneficial land owners are people who own or
control land indirectly, such as through a corporation, partnership or trust.

The Registry is intended to end hidden ownership of land and combat money laundering in B.C.
The B.C. provincial government created the LOTR to identify the individuals that actually own
real estate in the province.

Does the Land Owner Transparency Registry apply to you?

With few exceptions, all corporations, partnerships and trusts that own real estate in British
Columbia must register. Trusts include formal trusts, bare trusts, and prescribed trusts.

What do you need to do?

If you own an interest in land in a corporation, partnership or trust, you must prepare and
register a Transparency Report with the LOTR by November 30, 2021. An interest in land
includes a fee simple interest, life estate, or long-term lease.

The Transparency Report contains information about:

1. The corporation, partnership or trust that owns real estate (“Reporting Bodies”);
and,

2. The individuals who are beneficial owners of the corporation, partnership or
trust, as well as settlors of trusts (“Interest Holders”).

HEATH LAW LLP

The Transparency Report discloses information about Interest Holders, including:

1. Name
2. Citizenship
3. Social Insurance Number (or Individual Tax Number)
4. Date of Birth,
5. Residency for Tax Purposes, and
6. Address

Only some of this information will be publicly searchable, and certain Interest Holders are
eligible to restrict what is available to the public. Government agencies will have access to all
information. All Interest Holders must be advised that their personal information was included
in a Transparency Report and a special letter giving notice under the legislation must be
provided to the Interest Holder.

The Transparency Report must be uploaded to the LOTR Registry online.
The report must also be updated when the information concerning the Interest Holder changes, for
example, a change in residential address, name, or ceasing to be an interest holder.
Specific reporting requirements apply for each type of corporation, partnership, trust, and
Interest Holder.

A failure to prepare and upload a Transparency Report may result in the government pursuing
administrative penalties of up to $50,000 or 5% of the assessed value of the real estate.

What Heath Law LLP can do to help?

We have a team of lawyers and staff well versed in preparing Transparency Reports and
compliance under this new LOTR legislation.

Please advise our office by November 1, 2021, if you own real estate in a corporation, trust or
partnership, and if you would like our assistance in preparing and filing a Land Owner
Transparency Report.

Yours truly,
HEATH LAW LLP

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Could a Director of a Company be held Personally Liable for a Company’s Income Tax?

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Short Answer:

Generally, a director will not be held liable for corporate income tax absent misconduct. However, s.160 of the Income Tax Act introduces liability in certain circumstances where assets have been transferred by a taxpayer who owes a tax debt. The purpose behind this provision is to ensure that the CRA is able to collect tax debts where assets have been divested for less than market value.

Discussion:

Unlike s. 227.1 of the Income Tax Act, where a director’s liability is limited to tax withholdings and the like, s.160 creates liability for the recipient in a non-arm’s length transfer if the transferor has any kind of tax debt.

S. 160 applies to a person who has received a non-arm’s length transfer of property when the transferor owed a tax debt at the time the transfer occurred, and the transferee did not pay the market value for the property. Per s. 160(1), the transferee may be held jointly and severally liable for the tax debt, including interest, to the lessor of:

a) The value of the property transformed minus consideration given for it by the transferee; or
b) The total tax and interest that the transferor was liable to pay in or in respect of the year of the transfer and any preceding years.

In Borealis Geopower Inc. v the Queen, 2018 TCC 189 the Court applied s. 160 to corporate income tax. S.160, therefore, creates a situation where a director could incur personal liability for all or a portion of the income tax debt of the corporation if they were the transferee as described above.

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Family Law: Form 8 Financial Statement: Purpose and Use

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Providing financial disclosure in the course of a Family Law dispute can be overwhelming. This post is meant to be a brief guide on how and why you should complete the Form F8 Financial Statement (“F8”), and to address some common questions.

What is the F8?

The F8 requires you to be open and honest about your finances so that each party in a family law dispute, your lawyers, and the Court may know the starting point for negotiations and orders.

The F8 is a sworn document, meaning that being dishonest in completing it has the same consequences as lying under oath. Carelessness and inaccuracies in the F8 will reflect poorly on your credibility and may result in unfavorable treatment by the Courts. Many of the main issues in a family law dispute revolve around financial support and division of property, so a complete and accurate F8 is integral to resolving your dispute in an efficient, fair, and cost-effective manner.

Timelines:

The Supreme Court Family Rules require each party to exchange an F8 and supporting financial documents within 30 days of either commencing a Family Law action (for the Claimant) or from being served with a Notice of Family Claim (for the Respondent).

Structure:

The F8 is divided into six parts:

1) Part 1: Income
2) Part 2: Expenses
3) Part 3: Property
4) Part 4: Special or Extraordinary Expenses
5) Part 5: Undue Hardship
6) Part 6: Income of Other Persons in Household

Page 2 of the F8 indicates which parts to complete based upon the claims that are being made. It is important to refer to your financial documents while completing the F8. Categories like expenses and income may be difficult to ascertain, but it is important that you do not guess based on what you think your finances might be.

General Tips for Completing the F8:

Income for Those who are Self-Employed:

Arriving at your net income amount may be difficult. Some expenses, such as gas, cell phone, meals with clients, and a portion of your utilities or mortgage may be expenses that should be deducted from your gross income but not listed in Part 2 of the F8. You may wish to consult with your lawyer and accountant in completing this section.

Expenses:

Record what you actually spend. The relevant information is not what you would like to spend, or how much you used to spend before the separation. Put in your current expenses without embellishing.

If you share household expenses with another person, for instance, if you have remarried, are living with a new partner, or have a roommate, do not list the total combined amount; only record your share of the household expenses that you actually pay.

Periodic expenses should be divided to arrive at your monthly amount. If you pay some expenses annually or biannually, such as car insurance or property taxes, divide the total by 12 or 6 to come to the monthly amount.

Record expenses incurred or reasonably anticipated for the year. Some expenses, such as re-roofing or tree trimming, happen less often than once a year. If the expense arose this year, include it in the F8. If you re-roofed your home last year, then do not use that expense as an estimate of this year’s house maintenance costs, because it will not be repeated this year.

Property:

List all of the assets that you own, either solely or jointly with someone else (identify the co-owner of the property and the extent of their interest). Include assets that your spouse will not make a claim against, those that are located outside of Canada, those that you have acquired since the date of separation and those that your spouse does not know about.

You must list all of the assets that you have disposed of, including by sale or by gift, in the 2 years preceding the application. This includes assets that you owned independently of your spouse, dispositions that your spouse consented to, and assets that your spouse did not know about.

Debts should be listed in this section. A mortgage is considered a debt, and loans from friends or family should be included as well.

Changes in Circumstances:

The F8 is mostly based on information and documents from the recent past. The F8, therefore, provides a snapshot of a particular time in your financial life. If you anticipate any changes in circumstances in the near future, such as a promotion, your children moving out of your home, a change in pension income, etc., this should be listed on page 3 of the F8.

Parts 5 and 6: Undue hardship and Income of Other Persons in the Household

These sections are relevant in very particular circumstances. If you are unsure of how to complete these sections and how they apply to your situation, you may wish to consult a lawyer.

Consequences of Insufficient, Dishonest, or Lack of Disclosure:

A Court has the discretion to set a party’s income for the purposes of calculating child and spousal support if they feel that insufficient disclosure has been made. If a Court imputes a party’s income in this manner, the result could be an order for a higher amount of support than what would have been made if the party had disclosed their income.

Lack of financial disclosure at the time of the creation of a separation, co-habitation, or marriage agreement is grounds to set these agreements aside. If your agreement regarding how to divide assets is set aside, the Court has the discretion to divide the family property between the parties according to the property and support regimes in the Divorce Act (Canada) and the Family Law Act. Full and honest disclosure is, therefore, key to creating an enforceable agreement.

Finally, inaccurate disclosure can increase your legal costs by dragging out negotiations and by requiring your lawyer to continuously clarify and revise your documents.

 

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The Personal Liabilities of a Director of a Corporation

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BRIEF ANSWER

In the absence of fraudulent or illegal conduct or conduct that is beyond the scope of the director’s authority, a director will not generally face personal liability. However, a director may be held personally liable if they fail to indicate that they are acting in their capacity as a director, breach their fiduciary duties, or fail to act in an objectively reasonable manner. A director may also face personal liability for any amounts owing to the government that the company has failed to pay for income tax, GST, Employment Insurance or the Canada Pension Plan. A director may protect against personal liability by prudently fulfilling their obligations as a director and by ensuring that there are proper protections in place to minimize the risk of personal liability.

DISCUSSION

In general, a company will shield a director from personal liability while they are acting as a director, provided that they are not acting fraudulently or illegally. However, there are certain circumstances in which a director will face personal liability.

A director owes a duty of care to the company by virtue of their position. The applicable standard of care is set out in the Business Corporations Act to be that of a reasonably prudent individual in comparable circumstances. Directors with special expertise or knowledge (such as a lawyer, accountant, etc.) will be held to a higher standard of care. A director may delegate responsibilities to others, such as an officer or an expert; however, the director remains responsible to ensure that the individual is competent and that they adequately perform their duties. A director who breaches their duty of care to the company may face personal liability for any loss that the company suffers as a result.

A director has a fiduciary duty to act honestly and in good faith, with a view to the best interests of the company. This requires the director to avoid the pursuit of personal gain where it is inconsistent with the best interests of the company, act selflessly and loyally as a director of the company, maintain the confidentiality of information acquired by virtue of their position, and avoid conflicts of interest or disclose conflicts in a timely manner. A conflict of interest may arise where a director has a material interest in a contract, decision, or transaction contemplated by the company, when a director enters into a contract that competes with the company, or when the director takes an opportunity that rightfully belongs to the company. A director who breaches their fiduciary duty to the company may face personal liability for any loss that the company suffers as a result of the breach.

A director may face personal liability if it is not clear to other parties that he or she is acting in their capacity as a director of the company. If third parties believe they are dealing with an individual and not a company, the director may face liability for any obligations or losses resulting from the transaction. A director will also be personally liable for their tortious conduct to third parties if the director is not acting within the scope of their authority or on behalf of the company. A director must act in accordance with the applicable statutes, regulations, memorandum and articles of the company. If they fail to do so and behave improperly, they may be held personally liable.

Although directors generally only owe a duty to the company, in certain cases courts have held directors personally liable for breaching a duty to creditors. For example, failing to act reasonably by preferring one creditor over another when the company was insolvent, or engaging in other conduct prohibited by the Bankruptcy and Insolvency Act may give rise to personal liability. A director may also be personally liable for oppression or unfairly prejudicial conduct towards certain stakeholders, such as shareholders. These parties have reasonable expectations that directors will fulfill their duties to the company fairly. Consequently, in certain circumstances, a director may be personally liable if, for example, they gained a personal benefit or increased their control of the company as a result of the oppressive or unfairly prejudicial conduct.

Statutory provisions may also impose personal liability on a director. For example, a director will face personal liability if they pay a dividend, purchases, or redeems shares in the company where the company is insolvent or the action would render it insolvent. Indemnifying another director or officer where indemnity is not permitted by the company’s articles, its memorandum, or by statute may also result in personal liability. Authorizing the making of a false or misleading statement can give rise to personal liability. Significantly, while a director is generally not liable for the misdeeds of other directors if a resolution that authorizes illegal or improper conduct is passed while the director is absent, that director must dissent in writing within seven days of learning of the prohibited act or they will face personal liability. If there is a causal connection between a director’s inaction and a loss suffered by the company, then the director may be held liable for the loss.

Where the director failed to exercise due diligence, depending on the nature of the business a number of other statutes may also impose liability. A director may face personal liability if a company fails to pay the Canada Revenue Agency for any amounts owing, including interest and penalties, GST remittances, failure to withhold and remit income tax, or failure to deduct and remit for employment insurance or the Canada Pension Plan. Liability for these amounts only attaches to a director who was acting as a director when these amounts became due and has acted as a director within the last two years. A director should also be aware of a company’s need to withhold income tax for employees claiming tax exemptions under the Indian Act for Indian property that is not actually situated on a reserve. A director may face personal liability for any amounts that the company failed to withhold and that the CRA has been unable to recover from the company. A director may be excused from personal liability if they can demonstrate that they acted reasonably and diligently in the circumstances by trying to resolve any of the business’ financial difficulties to assist with payment and by ultimately ensuring that the company pays any amounts owing.

Under the Employment Standards Act, each director of a company may be liable for up to two months of unpaid wages for each employee. However, a director will not be personally liable for termination pay, vacation pay that becomes due after the director has ceased to hold office, or for money that remains in an employee’s time bank after the director has ceased to hold office if the company is in receivership or pursuing bankruptcy proceedings. Directors may also be liable for injuries related to unsafe working conditions.

A director may face personal liability for failure to comply with environmental laws where they did not exercise due diligence to prevent this failure. In certain cases, where a company’s actions have resulted in contamination, directors have been found personally liable despite not being a director at the time the company caused the contamination.

A director may reduce the risk of personal liability by properly fulfilling his or her duties as director, by being familiar and ensuring compliance with the applicable statutes and the company’s articles and other governing documents, by carefully appointing and maintaining proper supervision over officers and experts, and by maintaining appropriate governance policies. A director may also reduce his or her personal liability risk by ensuring that there is adequate liability insurance in place for directors and that there is an indemnity agreement from the company to provide indemnity for personal liability, when appropriate, that occurs while performing directors’ duties.

SUMMARY

The company will generally protect a director from personal liability; however, there are certain circumstances in which a director will experience personal liability. In addition to personal liability for fraudulent or illegal conduct, a director may also face liability for failing to represent oneself as a director of the company or failing to act within the scope of their authority as director. A director must also ensure that he or she is familiar with any laws under the statutes that apply to the company, and that any obligations arising from income tax, GST, Employment Insurance, or the Canada Pension Plan are withheld and remitted. In order to avoid personal liability, a director must fulfill their obligations to the company by acting in the best interests of the company, by exercising reasonable care, diligence and skill, and by acting in accordance with the applicable statutes, regulations, and the memorandum and articles of the company.

 

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What are a Spouse’s Rights upon Foreclosure?

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When a home falls into foreclosure the property is sold to satisfy the owner’s creditors. The sale proceeds first go to the mortgagee, and then to other creditors in order of priority. Priority is generally determined based on various factors such as the type of creditor and the date of registration of the debt. In general, a judgment creditor cannot claim an interest in property beyond that held by the judgment debtor. The Court Order Enforcement Act (CEA) confirms this common law principle, and clarifies in s. 86(3)(a) that a judgment creditor’s interest is subject to any equitable interests that may have existed prior to the registration of the judgment.

In a recent decision, Chichak v Chichak, 2021 BCCA 286 the court had to determine priority between a judgment creditor with a registered judgment, and the unregistered equitable interest of a spouse.

In this case, Mr. Chichak was the sole registered owner of the property subject to a mortgage. Ms. Chichak had transferred her interest in title to him several years earlier. In 2014, Cardero Capital and First West Credit Union both obtained judgments against Mr. Chichak and registered them against the title of the property. The property was foreclosed and sold in 2016, and $312,830.83 of the sale proceeds remained after satisfying the debts owed to the highest ranking creditors. Cardero and First West applied to the courts for access to the remaining proceeds. At the same time, Ms. Chichak applied to have a 50% equitable interest in the property declared in her favour and argued that this interest should outrank the judgment creditors in priority. The chambers judge found in favour of Cardero and First West by applying the statutory presumption of indefeasibility (meaning the only valid interests in reference to the land are those that are registered against the title) and by looking at case law where transfers of title between family members had been considered gifts which extinguished the equitable interests of the giftor.

On appeal, the Court ruled that the chambers judge had mistakenly applied the principal of indefeasibility, stating that while a genuine purchaser for value would take priority over an unregistered equitable interest, a judgment creditor is not a genuine purchaser and therefore does not have the same priority. To allow the judgment creditors to take priority over the equitable interest would be to grant an interest in the property beyond what was held by the debtor, which would be contrary to the CEA. The Court allowed the appeal and sent the case back to the Supreme Court of B.C for redetermination.

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Can I be Required to Produce my Computer Hard Drive in Disclosure/Discovery?

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Disclosure is a material issue in many family law cases. Without a clear idea of each party’s assets, a fair division of property is nearly impossible. However, there are clear limits to what the courts are willing to grant in an order for disclosure. In general, an applicant must specify which individual documents or category of documents they are requesting, link their request to a live issue in the proceedings, and justify the need for the disclosure of these documents (Mossey v. Argue, 2013 BCSC 2078).

In a recent case, Etemadi v Maali, 2021 BCSC 1003, one of the parties applied for an order to force disclosure of a hard drive. A hard drive was found to have the same legal status as a bookshelf or a filing cabinet; to grant an application for disclosure of a hard drive would amount to an authorization to search, which is not in keeping with the purpose of the disclosure rules. The court, therefore, declined to grant the order for production, stating that the interest of protecting privacy and privilege outweighed the desirability of absolute disclosure in this case.

 

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