As we noted earlier ONCA has been indefinitely delayed. The government has said that certain implementing legislation has to be passed and certain technological systems put in place before ONCA comes into force. The Ontario government said they would provide the sector with 2 years notice before ONCA would be brought into force.
Here is part of an email I sent to the Ontario government on September 18, 2015:
I am wondering with the delay whether the government would consider a manual system in the beginning to be later replaced by the electronic system?
Also will the Ontario government be prepared to release basic information on Ontario nonprofits as I have requested in the past?
I am awaiting a response and will let you know when I hear something substantive.
Essentially one possibility is to bring in ONCA with a manual system. This is how lots of things work with government - not everything is electronic. I understand that the ONCA database does not work and has had huge cost overruns. One day they will make it work but in the interim why not bring in the new legislation to replace the 1907 Ontario Corporations Act and bring in the electronic component later.
The second concern that I have with the delay is that I received this email from the Ontario government in February 13, 2013 when they refused to provide a list and basic information on Ontario non-profits:
"However, I would like to bring to your attention that when the new Ontario Business Information System (ONBIS) is launched (tentatively scheduled for July 1, 2013), most of the data you are requesting will be available to the public online and free of charge. Fundamental information about a corporation such as the name, corporation number, date of incorporation, type and status will all be available."
I was not happy with the answer at the time, however, now it appears that ONCA will be coming in 5 years later. The Ontario government can quite easily create a public list (for example in Excel or PDF) with the basic information. This would allow small non-profits to at least know if they are listed on the Ontario system and most importantly whether their address and other information is remotely correct. In my experience many Ontario non-profits have not updated their corporate information with the Ontario government in many years and sometimes even decades.
The problem is not only that ONCA may come in around 2018. The secondary problem is that many organizations will have a lot of work to bring their articles, by-laws etc up to date. Then when they file with the Ontario government, especially charities, I am worried that there is going to be an extensive delay in processing as there will be so many organizations needing to update their governance structure and unnecessary duplication when it comes to Ontario corporations that are registered charities.
Although one option is to stick your head into the sand for a few years. Another option is to make certain changes now to bring your organization into relative conformity with the OCA and ONCA requirements and good practice. Then you will have to redo it all a few years later. A further option which only takes a few months is to skip ONCA completely and move to Federal jurisdiction under the CNCA. We have helped many organizations with all these options.
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.