Section 140.1  of the OBCA

Are you an Ontario Company with mining interests? If so, there are new rules to follow

On December 16,2018 all existing Ontario Business Corporations Act (“OBCA”) companies will need to comply with Section 140.11  of the OBCA, which requires companies to keep a register of all “ownership interests in land” in Ontario.  For mining companies, such interests established under the Mining Act (Ontario)2 can include:

(i)    Patented lands; and
(ii)    Leases3.

They may also include:
(I)    Mining Claims4;  and
(II)    Royalties5.

But likely do not include:
(i)    Licences of Occupation6; or
(ii)    Land Use Permits7.

The term “ownership interest in land” is not defined.  It is, for instance, unclear whether beneficial (i.e. non-registered) interests are also covered.

This legislation does NOT apply to:

(i)    companies incorporated under other statues (such as the CBCA or the legislation of other provinces); or
(ii)    land held outside Ontario.

Until the uncertainties surrounding which interests are to be recorded in the register are clarified, best practice would seem to be to record all of these interests in your register.

There are penalties for non-compliance with the OBCA:
Every person who…without reasonable cause commits an act contrary to or fails or neglects to comply with any provision of this Act or the regulations…is guilty of an offence and on conviction is liable to a fine of not more than $2,000 or to imprisonment for a term of not more than one year, or to both, or if such person is a body corporate, to a fine of not more than $25,0008:

One would hope that these penalties will not be enforced until the registration requirements, at least as far as they affect mining assets, are clarified.

   Chuck Higgins
Managing Principal
Pilot Law LLP
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1 Register of interests in land in Ontario
140.1 (1)  A corporation shall prepare and maintain at its registered office a register of its ownership interests in land in Ontario.

(2)  The register shall,
(a)    identify each property; and
(b)    show the date the corporation acquired the property and, if applicable, the date the corporation disposed of it.

Supporting documents
(3)  The corporation shall cause to be kept with the register a copy of any deeds, transfers or similar documents that contain any of the following with respect to each property listed in the register:
1.    The municipal address, if any.
2.    The registry or land titles division and the property identifier number.
3.    The legal description.
4.    The assessment roll number, if any.
2 R.S.O. 1990, c. M.14
3 Mining Act, s 81
4 See conflicting cases: A mining claim in an interest in land: Clarkson v. Wishart, 1913 CanLII 413 (UK JCPC); A mining claim is not an interest in land: 1520658 Ontario Inc. v Her Majesty The Queen, 2017 ONSC 4141 (CanLII)
5 Royalties are fact specific:  see  Third Eye Capital Corporation vs. Dianor Resources Inc. 2018 ONCA 253 (Ont. C.A.) where a royalty was an interest in land; and Walter Energy Holdings Inc. (Re)2016 BCSC 1746 where a royalty was not an interest in land.
6 Mining Act, s41
7 Issued under the Public Lands Act, R.S.O. 1990, c. P.43
8 OBCA s..258(1)

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