Government of New Brunswick
Are we obligated to become incorporated?

Non-profit organizations are not required to incorporate. They do, however, have the opportunity to choose to be legally incorporated either provincially or federally. In New Brunswick, non-profit organizations choosing to incorporate provincially do so under the Companies Act. Organizations whose operations occur throughout Canada may choose to incorporate federally under the Canada Corporations Act, Part II.

 

Should we incorporate?

There are many things for an organization to consider before deciding to incorporate or not. The organization must look at the benefits and also the obligations that are associated with the incorporated status. The organization must also look at its goals, and decide what best suits its purpose.

 

What are the benefits?

Some benefits to incorporating your organization are: 

  1. Distinct Legal Entity

    An incorporated organization has a separate legal personality distinct from its members. Generally it can sue and be sued in its own capacity. It provides a formal legal status for those associated with it;

  2. Limited Liability

    Members of an incorporated organization are not normally personally liable for its debts and obligations. However, directors may incur personal liability in certain circumstances;

  3. Perpetual Existence

    An incorporated organization may go on forever. If the members change, the incorporated body continues to exist and will do so until the organization is dissolved according to the requirements set out in the Companies Act;

  4. Ownership of Property

    An incorporated organization can own property in its own name. If the members of the organization change, the legal title to the property stays with the incorporated body; and

  5. Government Aid

    Some government agencies have programs to assist not-for-profit organizations. They often require, however, that the organizations they fund be incorporated.
What are the obligations?

The obligations and duties of an incorporated body include:

  1. keeping a book known as the company registry, which lists all the members of the organization;

  2. filing appropriate notice with the director, Corporate Registry, Service New Brunswick, of any change in the:

    i.   directors; or the
    ii.  address of the head office;

  3. holding a general meeting of members at least once a year, where directors must present to members a full statement of the affairs and financial position of the organization. This process is governed by the Companies Act. The Companies Act allows the organization to establish, in its own bylaws, the time and place of the meeting.

  4. filing an annual return with the Corporate Registry, Service New Brunswick. Should the organization fail to file its annual return, its corporate status may be lost.
How do we incorporate?

The Application for Provincial Incorporation, which is set out in Form 36 of the Companies Act Regulations, must provide the following information:

  1. Name of the organization

    Before you prepare an application and complete the documents for incorporation, the proposed name of your organization should be approved by the Corporate Registry of Service New Brunswick. It must not be objectionable on public policy grounds, and it cannot be the same as or similar to the name of any other incorporated or unincorporated business or organization.

    The information kit titled Selecting A Proposed Name is available from Corporate Registry. It sets out the steps which should be followed in the selection of the proposed name, and its approval by Corporate Registry.

    The name of a company must include either the word ”Incorporated” or ”Limited” or either of the abbreviations ‘Inc.’ or ‘Ltd.’ These legal identifiers are usually found at the end of the name.

  2. Purposes or objectives

    You must state what the organization intends to do. The purposes and objectives must fall within the scope of activities permitted by the Companies Act (see sections 16 and 18 of the act).

  3. Head office

    You must state the place in New Brunswick that will be the legal home of the organization. Usually this is where all official correspondence is sent, where the corporate seal is kept, and where the books of the organization are available for inspection.

  4. Capital stock and acquisition of property

    Most not-for-profits are incorporated without capital stock, and they do not issue any share certificates. A non-share company may acquire real and personal property of an unlimited cost value, unless otherwise specified in the letters patent.

For more information on incorporating a non-profit, and details on filing an application for incorporation, please view these documents on the Service New Brunswick website:


What information must be included in the Application for Provincial Incorporation?

On an application for incorporation of a company subject to Section 16 or 18 of the Companies Act, or for incorporation of a company incorporated under Part II of the Companies Act, the fee is (where capital stock, or where the re is no capital stock, the cost value of the real and personal property):

 

To $25,000 $62.00*
$25,001 to $50,000 $112.00*
$50,001 to 75,000 $162.00*
$75,001 to an unlimited amount $212.00*

*these amounts include the $12 Royal Gazette publication fee.

 

Is there a fee for provincial incorporation?

Provincial Incorporation

If, after considering the advantages and disadvantages of incorporation, the organization wants to proceed, at least three applicants who are 19 or older and who will become the provisional directors of the organization must file an Application for Incorporation and a Name Search report with the Corporate Affairs Branch of Service New Brunswick.

Federal Incorporation

If your organization is going to operate nationally you may choose to incorporate federally. Non-profit organizations can be incorporated at the federal level under the Canada Corporations Act, Part II. This includes both charitable corporations and membership corporations, such as social, professional or fraternal organizations.

The following items must be submitted to the Corporations Directorate in order to obtain a Letters Patent of Incorporation:

  • application for letters patent, in duplicate;
  • affidavit or statutory declaration; 
  • $200 filing fee;
  • current Canada-based NUANS name search report;
  • copy of the proposed bylaws; and
  • covering letter stating the street address of the corporation's head office.

Information for non-profit organizations, including kits to help you apply for federal incorporation, is available online.

 

How do we choose a name for our organization?

Choosing a name not only applies to non-profits who decide to become incorporated, but to those who may choose to register their organization’s name to avoid the duplication of that name by a similar organization.

In determining whether a proposed name is suitable, consider the following factors:

  • Does it describe the product or service offered? 
  • Is the name distinctive? 
  • Can customers identify and remember the name?
What is a name search report and where do we get it?

The proposed name must be checked against a NUANS name search (Atlantic-based), and if available may be reserved for a period not exceeding 90 days. The name search must be done through a private sector name search firm. The NUANS name search report must be forwarded with the application documents.

A list of private sector name search firms is available from Corporate Registry.

 

Related Links
  • Visit the PLEIS-NB website for answers to other legal questions you may have on starting a non-profit organization.
  • For information on selecting a name for your organization, view the document on the Service New Brunswick website - Selecting a Proposed Name - Information.
  • The Canada Business website is also another great resource for non-profit groups.
  • Please visit Charity Village for more information on starting a charity or non-profit organization in Canada.
  • Please visit the Industry Canada website for information on creating and maintaining a non-profit organization.