SOCIETIES ACT (NUNAVUT) INCORPORATION OF A SOCIETY

Transcription

1 SOCIETIES ACT (NUNAVUT) INCORPORATION OF A SOCIETY Five or more persons may apply to incorporate a society under the Societies Act (Nunavut) for any benevolent, philanthropic, charitable, religious, provident, scientific, artistic, literary, social, educational, sporting or other useful purpose other than the carrying on of a trade or business. There are several advantages to incorporating a society. An incorporated society exists as a legal entity apart from its members. As a corporation the society is entitled to acquire property, borrow money and otherwise deal with its property as an individual would deal with their property. Generally, the individual members of the incorporated society are not liable for the debts or obligations of the society. Along with these advantages come certain obligations. The operations of an incorporated society must be more structured than those of unincorporated organizations. Both the by-laws of the society and the Societies Act must be adhered to. The Societies Act provides that any society that contravenes the Act is guilty of an offence and liable to a fine of $ The Act also provides that the property of a society cannot be distributed to its members during the society s legal existence. Each year, a society is required to file the following documents with the Registrar of Societies within 14 days after its annual general meeting: 1. financial statements signed by the society's auditor (or by two directors if there is no auditor) containing the assets and liabilities of the society in the form of a balance sheet and a statement of the receipts and disbursements of the society during the fiscal year; 2. a list of its directors including their names, addresses and occupations. The list of directors is to be signed by a director or other authorized officer of the society. In addition, the society must have an address within Nunavut to which all communications and legal notices may be sent and it must file notice with the Registrar of any changes in this address. Please note that incorporation under the Societies Act does not relieve anyone from obtaining any necessary licences, permits, or certificates, or from otherwise complying with the laws in force in Nunavut. HOW TO INCORPORATE Five or more applicants must subscribe to an application and by-laws prepared in accordance with the Societies Act. The applicants must sign and complete a subscription page to acknowledge their support of the application and by-laws. These documents must be submitted to the Registrar of Societies, together with a notice of registered office and the incorporation fee of $50.00, payable to Nunavut Legal Registries. The Notice of Registered Office must be signed by one of the applicants and must include a complete postal and street addresses (if no street address is available some form of physical address such as a house number and community name is satisfactory). If the application and by-laws comply with the Societies Act, the Registrar will issue a certificate of incorporation. Notice of the

2 incorporation will be published in the Nunavut Gazette. A sample application form is included in this package, along with sample by-laws. These will serve as a guide to the matters which must be dealt with in the application and by-laws and the manner in which the application and by-laws must be dated and signed. APPLICATION: The enclosed form of application should be completed with the name of the society, the objects of the society, and the community in Nunavut in which the operations of the society are to be chiefly carried on. These three items will become the constitution of the society and must be considered as separate and distinct from the by-laws.! The name of the society should be as short and meaningful as possible. The name must not be similar to that of any other society. Once a name is chosen, the exact name must be used in all legal documents.! The objects must indicate that the society is being incorporated for one of the above purposes. They may not suggest that the society is carrying on a trade or business.! Only one community in Nunavut should be specified as to where the primary activities and operations of the society will occur, which might be different from place where the society will be administered and where meetings will be held. BY-LAWS: The attached sample by-laws have been drafted to satisfy the basic requirements for incorporation. If these by-laws are satisfactory to the subscribers to the application they may be used, however a specific day and month must be written in section 13 as to the intended fiscal year end date. A society drafting its own by-laws should use the following checklist to determine if its proposed bylaws meet all the requirements of the Societies Act (Nunavut). The by-laws of a society must make provision for all of the following:! the terms of admission of members and their rights and obligations;! the withdrawal of members and the manner, if any, in which a member may be expelled;! the method and time of calling general and special meetings of the society, the quorum at any such meeting, and the voting rights of members at such meetings; - the annual general meeting of the members cannot be held until at least 30 days after the expiration of the fiscal year end; and - a quorum is the number of persons required to be present before a meeting can proceed. It should be low enough to be practical. It may be set as a percentage of the 2

3 total number of members in order to ensure that it is always possible for the society to properly function, no matter how low or high the membership may be.! the appointment and removal of directors and other officers and their duties, powers and remuneration;! the exercise of borrowing powers;! the audit of accounts; - the Societies Act does not require that accounts be audited, but it does require that the by-laws state whether or not an audit is required.! the seal of the society and the custody and use of the seal; the name on the corporate seal should be the exact legal name of the society.! the preparation and custody of minutes of meetings of the society and of the directors and other books and records of the society;! the time and place, if any, at which the books and records of the society may be inspected by its members; and! the date on which the fiscal year of the society shall come to an end. - in order to provide sufficient time for the preparation of the financial statements, the annual general meeting cannot be held within 30 days of the fiscal year end. It is suggested that the annual general meeting be held within a reasonable period of time after this 30 day period. SUBSCRIPTION: The applicants must provide their signatures in the presence of a witness to acknowledge their support of the application and by-laws. The applicants and witnesses must include their complete postal and street addresses (if no street address is available some form of physical address such as a house number in their community is satisfactory). REGISTRATION AS A CHARITY Many societies wish to be registered as a charity for income tax purposes. Once registered as a charity, a society will be exempt from paying tax on income and can issue receipts to donors for donations. Certain societies that do not qualify for registration as a charity for the purpose of issuing receipts for donations may still qualify for registration as non-profit organizations exempt from the payment of tax. It is not necessary to incorporate in order to be registered as a charity. Also, not all societies 3

4 incorporated under the Societies Act will qualify for charitable status for income tax purposes. The onus is on a society wishing to register as a charity to establish objectives which qualify. Applications for registration as a charity can be obtained from Revenue Canada Taxation. Any further questions regarding registration as a charity should also be directed to Revenue Canada Taxation. 4

5 APPLICATIONS, FILINGS AND APPROVALS FEE SCHEDULE 1. Incorporations... $50 2. Changes of name and any other amendments to the constitution (for all amendments passed at one meeting) By-law amendments (for all amendments passed at one meeting) Dissolution... NIL 5. Filing financial statements... NIL 6. Filing notices of directors... NIL 7. All other filings or approvals... NIL SEARCHES, CERTIFICATES AND PHOTOCOPIES 1. Searches... NIL 2. Certificate of status Certificate of true copy of a document Photocopies (for each page) Copies of documents transmitted by facsimile (for each page) Fees payable by any government in Canada for searches, certificates, and copies. NIL Nunavut Legal Registries Government of Nunavut Bag 9500 Suite 2, th Avenue YELLOWKNIFE NT X1A 2R3 PHONE:(867) FAX: (867)

6 FORM 1 APPLICATION FOR INCORPORATION We, the undersigned, hereby declare that we desire to have a society incorporated under the Societies Act and that 1) the name of the Society is : CONSTITUTION 2) the object (or objects) of the Society are : 3) the operations of the Society are to be chiefly carried on in : (name of community) Dated at, on the day of, 1999.

7 BY-LAWS 1. Terms of Admission: All individuals shall be eligible for admission to membership in the Society on payment of the membership fee. 2. Rights of Members: All members of the Society shall have the right to take part in all activities and to use all facilities established by the Society for the promotion of its objects, subject to such regulations and the payment of such additional fees as the directors may from time to time prescribe for specific activities. 3. Obligations of Members: Each member shall pay an annual membership fee at such time and in such amount as is determined by the members at each annual general meeting. 4. Withdrawal and Expulsion of Members: a) Any member may withdraw from membership in the Society by notice in writing to the Secretary. b) Any member whose conduct is considered detrimental to the Society or who is more than thirty days in default in paying annual dues may be expelled by a resolution passed by a majority of the directors of the Society. 5. Meetings: a) An annual general meeting of the Society shall be held between 31 and 180 days after the date of the fiscal year end; b) General meetings of the Society shall be held at the call of the President; c) Any ten members may call a special meeting by presenting a signed request to the President, who shall call a meeting within fifteen days after receipt of such request; d) Notice of any general or special meeting shall be given at least seven days prior to the date set for the meeting by the posting of notices of such meetings at conspicuous points throughout the area of operations and/or by publication in a newspaper of general circulation, such notice to set forth the time, place and business to be transacted at such meeting; e) Thirty (30)% of the paid up members shall constitute a quorum at all meetings; f) If the President or Vice-President is not present at a meeting, the meeting will elect a Chairman for the purposes of that meeting only; 1

8 g) Each member is entitled to one vote on any motion or resolution at all meetings. 6. Directors: a) Until the first annual general meeting, the directors shall consist of the subscribers to the Application and By-laws; b) There shall be between 3 and 12 directors elected from among the members of the Society at the first and each subsequent annual general meeting; c) The directors shall have the power to appoint chairpersons to head necessary committees, who shall be responsible to the directors and shall not hold the designated offices for any period beyond the next annual general meeting; d) The majority of directors shall have the power to appoint any member of the Society to fill a vacancy in their numbers and any director so appointed shall retire from office on completion of the unexpired portion of the term of the director he replaces; e) The directors shall be responsible for conducting the affairs of the Society in accordance with its objects, by-laws and the Societies Act; f) A majority of directors will constitute a quorum at any director's meeting; g) Any director may be expelled by a 2/3 majority vote of directors for proven dishonesty, or for gross misconduct, or for failing or refusing to carry out his duties as a director as provided in these By-laws; h) Directors or other officers shall be paid travelling and living allowances to compensate them for expenses incurred by them in the conduct of their duties, and such other remuneration as is established by the members at the annual general meeting. 7. Officers: a) The directors from their own number shall, at their first meeting after incorporation and at their first meeting after the annual general meeting in each succeeding year, elect a President, Vice-President, Secretary, Treasurer and such other officers as are deemed necessary; b) Such officers shall hold office until the conclusion of each annual general meeting at which time a meeting of the newly elected directors will be convened to elect their successors; 2

9 c) The President shall, when present, preside at all meetings of the members and of the directors. The President shall be responsible for the general management and supervision of the affairs and operations of the Society; d) The Secretary shall cause to be communicated notices of all meetings of members and all meetings of directors, and is responsible for keeping minutes of all such meetings; e) The Treasurer shall be responsible for keeping full and accurate accounts of all receipts and disbursements of the Society; f) The Vice-President shall exercise the duties and powers of the President, Secretary and Treasurer in their respective absences; g) The offices of Secretary and Treasurer may be combined into one office to be known as Secretary-Treasurer. 8. Borrowing Powers: The directors may, by a 2/3 majority vote, borrow funds for capital expenditures and for the current operations of the Society in such manner as they see fit, including the issue of debentures, except that in no case shall debentures be issued except pursuant to an extraordinary resolution. 9. Disposal of Funds: a) All monies received by or on behalf of the Society shall be deposited in the Society's bank account in trust for the Society, which account shall be with one of the chartered banks of Canada; b) All disbursements from the trust bank account shall be made by cheques signed by the President or Vice-President, and the Treasurer, or in any of their absences, by some other director appointed by resolution of the directors. 10. Auditor: a) At the annual general meeting an auditor may be elected for the ensuing year; b) At each annual general meeting an annual financial statement containing: I) the assets and liabilities of the Society in the form of a balance sheet, and ii) receipts and disbursements of the Society since the date of incorporation or the date of the previous financial statement 3

10 and signed by the auditor, or by two directors if there is no auditor, shall be presented for the inspection of the members. 11. Seal and Signing Authority: a) The seal of the Society shall have the name of the society in a circle around the word "SEAL" b) The seal shall be kept in the custody of the Secretary and shall not be affixed to any instrument or document except by authority of a resolution of the directors, and in the presence of the Secretary and at least one other director; c) The Secretary and at least one other director shall have the authority to sign instruments or documents on behalf of the Society. 12. Minutes of Meetings, Books and Records: All books and records of the Society shall be open to the inspection of members at each annual general meeting. 13. Fiscal Year: The fiscal year of the Society shall end on the day of of each year. 14. Distribution of Assets: The Society shall not distribute any part of its income to any of its members. This does not preclude the payment of reasonable salaries or employee benefits, nor does it preclude the reimbursement of reasonable out-of-pocket expenses. On a winding-up of the Society, all remaining assets shall be distributed among Canadian charities registered pursuant to the Income Tax Act. 15. Arbitration: Any dispute arising in the circumstances set out in section 7 of the Societies Act shall be decided by arbitration under the Arbitration Act. 4

11 In witness whereof we have subscribed our names to this application and by-laws this day of, 19. APPLICANTS WITNESSES Signature: Postal and Physical Address: Signature: Postal and Physical Address: Name: Occupation: Name: Occupation: Signature: Postal and Physical Address: Signature: Postal and Physical Address: Name: Occupation: Name: Occupation: Signature: Postal and Physical Address: Signature: Postal and Physical Address: Name: Occupation: Name: Occupation: Signature: Postal and Physical Address: Signature: Postal and Physical Address: Name: Occupation: Name: Occupation: Signature: Postal and Physical Address: Signature: Postal and Physical Address: Name: Occupation: Name: Occupation: 5