When changing the governing documents of a non-profit (such as under ONCA or the CNCA), it’s important to understand the different functions of Articles of Amendment and Restated Articles of Incorporation. These documents serve different purposes but work together to update an entity’s corporate records.
What Are Articles of Amendment?
Articles of Amendment make specific changes to a corporation’s existing governing documents, be that Articles of Incorporation or Letters Patent. These amendments may include changes to an entity’s name, purposes, special provisions, or the range of directors. Once the amendments are approved by a special resolution (two-thirds majority) of the members, a corporation will file Articles of Amendment to reflect the amendment. The entity will then receive a Certificate of Amendment from the applicable governing body if the amendment is accepted. It is important to understand that Articles of Amendment only update sections of the governing documents and do not replace the existing governing documents.
What Are Restated Articles of Incorporation?
Restated Articles of Incorporation consolidate the original governing documents, be that Articles of Incorporation (or Articles of Continuance in the case of older CNCA corporations under the old Canada Corporations Act) or Letters Patent (under the Ontario system), with all previously filed and approved amendments into a single, unified document. This document reflects all amendments and provides a clean and comprehensive version of the governing documents as they currently stand. Filing Restated Articles does not introduce new amendments; rather, it simplifies an entity’s record-keeping by eliminating the need to cross-reference governing documents with multiple amendments. Restated Articles of Incorporation need to be passed by the board of directors, but don’t require member approval.
Why File Both?
We recommend that corporations that have amended their governing documents via Articles of Amendment also file Restated Articles of Incorporation, if they have previously obtained board of director approval for the Restated Articles of Incorporation. This makes the governing documents easier to read, understand, and reference. Instead of reviewing the original Articles alongside multiple amendments, the corporation will have a single, cohesive document that reflects its current structure.
Making Change and Filing Under CNCA and ONCA
Under the Canada Not-for-profit Corporations Act (CNCA): To amend the governing documents, a CNCA corporation must pass a special resolution approved by at least two-thirds of the members outlining the amendment. It must then file Form 4004 – Articles of Amendment with Corporations Canada via the Online Filing Centre. After receiving the Certificate of Amendment, the corporation may choose to file Form 4007 – Restated Articles of Incorporation. Restated Articles of Incorporation are submitted to Corporations Canada by email.
Under the Ontario Not-for-Profit Corporations Act, 2010 (ONCA): To amend its governing documents, an ONCA corporation will file Form 5271E – Articles of Amendment with the Ontario Ministry of Public and Business Service Delivery and Procurement, following the approval of the amendment by a special resolution (two-thirds majority) of members. Once the Certificate of Amendment is issued, the corporation may file Form 5273E – Restated Articles of Incorporation with the Ontario Ministry of Public and Business Service Delivery and Procurement.
So, in summary, you are not required to have Restated Articles. However, they make it much easier for various stakeholders, such as the directors, members, staff, and others, to understand the current state of your governing documents.