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Incorporating the organisation and registering it as a charity are two separate processes with two different regulators. Getting the articles and objects right the first time is what makes the second one possible.
Arrange a Call →The Not-for-Profit Corporations Act, 2010 came into force on October 19, 2021. The transition period for existing Ontario non-profits ended on October 18, 2024, non-conforming provisions in articles and by-laws are now deemed amended to comply.
File articles of incorporation under the Not-for-Profit Corporations Act, 2010 through the Ontario Business Registry, supported by a NUANS name search. You need at least three directors, at least one class of members, purposes stated in the articles, and by-laws covering membership, meetings and the board. An Initial Return under the Corporations Information Act must be filed within 60 days of incorporation.
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Incorporating a not-for-profit corporation in Ontario creates a legal entity under the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, known as ONCA. Registering as a charity is a separate application to the Charities Directorate of the Canada Revenue Agency under the Income Tax Act, and it is the registration, not the incorporation, that permits an organisation to issue official donation receipts. Many groups incorporate first and then discover that their stated purposes will not support charitable registration, which means amending the articles before the application can succeed.
Not every non-profit needs to be a charity. A non-profit organisation that is not a registered charity can still be exempt from income tax under the Income Tax Act provided it is organised and operated exclusively for a purpose other than profit and no income is payable to or available for the personal benefit of a member. What it cannot do is issue donation receipts. Trade associations, sports clubs, professional bodies and many community organisations operate this way by choice, because charitable status brings continuing compliance obligations including a disbursement quota and restrictions on activities.
Lexaltico LLP incorporates Ontario not-for-profit corporations, drafts ONCA-compliant by-laws and membership structures, prepares charitable registration applications, and advises existing boards on governance, conflicts of interest, member discipline and director liability.
| ONCA (Ontario) | Canada Not-for-profit Corporations Act | |
|---|---|---|
| Filing authority | Ontario Business Registry | Corporations Canada |
| Minimum directors | Three | One, or three where the corporation is a soliciting corporation |
| Special category | Public benefit corporation | Soliciting corporation |
| Trigger for that category | Charitable status, or more than $10,000 received in a financial year in donations from non-members or in government grants | More than $10,000 in public funds received in a single financial year |
| Name protection | Ontario | Across Canada |
| Operating in Ontario | No further registration | Extra-provincial registration in Ontario also required |
| Members | At least one class of members required | At least one class of members required |
For an organisation whose activities and donors are in Ontario, ONCA is generally the straightforward choice. Federal incorporation suits organisations operating nationally or wanting national name protection, at the cost of a second registration and a second annual filing stream. Neither statute confers charitable status, and neither is a substitute for the CRA application.
ONCA creates a category called a public benefit corporation. A corporation is a public benefit corporation if it is a charitable corporation, or if it is a non-charitable corporation that received more than $10,000 in a financial year in the form of donations or gifts from persons who are not members, directors, officers or employees, or in grants or similar financial assistance from a level of government. The status can therefore be acquired simply by receiving a government grant, and many boards do not realise their classification has changed.
The consequences are real. Not more than one third of the directors of a public benefit corporation may be employees of the corporation or of any of its affiliates, which constrains boards at organisations that had staff serving as directors. Public benefit corporations also face stricter financial review thresholds and restrictions on the distribution of property on dissolution, which must generally go to another public benefit corporation with similar purposes, a government body, or another qualified recipient rather than to members.
Financial review requirements under ONCA turn on both the category and annual revenue. A public benefit corporation with annual revenue of $500,000 or more requires an audit. Below that, and above a lower prescribed threshold, members may substitute a review engagement by extraordinary resolution, and at the lowest revenue levels the appointment may be waived entirely by extraordinary resolution. A non-public benefit corporation with revenue of $500,000 or more may substitute a review engagement by extraordinary resolution. An extraordinary resolution under ONCA requires at least eighty per cent of the votes cast, which is a high bar that must be planned for in advance of a members meeting.
If charitable registration is intended, the purposes must fall within the recognised heads of charity: relief of poverty, advancement of education, advancement of religion, or other purposes beneficial to the community recognised as charitable at law. Vague or overly broad objects are the most common reason applications are refused.
A NUANS report supports the proposed name. The articles set the purposes, the number of directors or a range, any restrictions on activities, and the distribution of property on dissolution.
Articles of incorporation are filed electronically through the Ontario Business Registry. The government filing fee is set by the registry and is payable at filing.
By-law No. 1 covering membership classes and conditions, notice and conduct of meetings, quorum, director election and removal, officers, committees, financial year end and borrowing powers. First directors and members are appointed and the initial resolutions passed.
Filed under the Corporations Information Act, identifying directors, officers and the registered office. Changes must be reported within 15 days.
Application to the Charities Directorate with the governing documents, a detailed description of activities, and proposed budgets. Processing times vary considerably and questions from the Directorate are common.
A registration number, a business number and, where the organisation will have employees, a payroll account are all obtained from the Canada Revenue Agency. Organisations that will fundraise, run raffles or lotteries, serve alcohol at events, or handle personal information should also review the licensing and privacy obligations attaching to those activities before starting them.
ONCA requires at least one class of members, and the by-laws set the conditions of membership, the rights attaching to each class, and how membership ends. Even where a class is described as non-voting, ONCA gives members of every class a vote on certain fundamental changes affecting their class, which is a frequent surprise for boards that assumed a non-voting class had no say at all. Membership design deserves genuine thought: a large open membership creates democratic legitimacy and also creates the possibility of a contested board election.
Directors must be individuals at least 18 years of age who have not been found incapable by a court and are not undischarged bankrupts, and ONCA imposes no residency requirement. Directors owe the corporation a fiduciary duty and a duty of care, must disclose any conflict of interest in a material contract or transaction, and are subject to statutory liability for up to six months of employee wages and twelve months of vacation pay. Boards should maintain indemnification provisions in the by-laws and consider directors and officers insurance, which ONCA permits.
Directors of an Ontario charity generally cannot be paid for serving as directors. Ontario law governing charitable property, overseen by the Office of the Public Guardian and Trustee, restricts payments to directors and to persons connected to them, permitting them only in limited circumstances and on prescribed conditions. Boards should get advice before approving any payment to a director, a director business, or a related person, including for services provided in another capacity.
Organisations incorporated under Ontario's former Corporations Act were given a transition period after ONCA came into force on October 19, 2021 to review and amend their articles and by-laws. That period ended on October 18, 2024, and provisions that do not conform to ONCA are now deemed to be amended to comply with it. The practical result is that some boards are governing under rules different from the ones written in the documents they are reading, particularly on membership classes, voting, quorum and financial review. A review of the governing documents against ONCA is worth doing even now.
Registered charities carry further ongoing obligations: filing the annual information return within six months of fiscal year end, meeting the disbursement quota on property not used directly in charitable activities or administration, keeping adequate books and records in Canada, ensuring resources are devoted to charitable activities and that any grants to non-qualified donees meet the accountability requirements, and issuing receipts that contain all prescribed information. Failure to file the annual return is a common cause of revocation, which carries a revocation tax.
Whether you are forming a new organisation or bringing an existing one into line, the work is the same in kind: purposes, articles, by-laws, membership, board composition and financial review, each checked against ONCA and, where applicable, against the requirements of charitable registration. Contact our corporate group to incorporate a not-for-profit or to review your existing governing documents.
A common misconception is that a not-for-profit cannot earn money. It can. ONCA permits a corporation to carry on commercial activities provided the profits are used to advance its purposes and are not distributed to members except as the Act permits. What matters is the destination of the surplus, not the existence of one. The analysis is different for a registered charity, where the rules restrict business activity to a related business, and where an unrelated business can put registration at risk. A charity planning a significant earned-revenue stream should get advice on structure before launching it, since a separate taxable subsidiary is sometimes the answer.
Registered charities may also engage in public policy dialogue and development activities in furtherance of their charitable purposes without limit, following amendments to the Income Tax Act, although they must remain non-partisan and cannot support or oppose a political party or candidate. This is an area where older guidance circulating among boards is out of date, and where organisations sometimes restrain themselves more than the law requires.
Operational risk deserves board attention. Organisations running raffles, lotteries or bingo need the appropriate licence; those serving alcohol at events need a permit and should consider host liability; those working with children or vulnerable adults should have screening, supervision and reporting policies, and should understand the duty to report a child in need of protection. Organisations with employees carry the same obligations as any employer, including workplace harassment and violence policies under the Occupational Health and Safety Act, and volunteers are not employees but do create their own duty-of-care considerations.
Finally, insurance and record-keeping. Directors and officers liability coverage, general liability, and coverage appropriate to the activities being run should be reviewed annually against what the organisation actually does rather than what it did when the policy was first bought. Minutes of board and members meetings, financial records, membership registers and donation records should be maintained to the standard ONCA and, for charities, the Income Tax Act require, and kept where the statute requires them to be kept. Good records are what allow a volunteer board to demonstrate that it exercised the care the law expects of it.
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