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    Tips for the New Entrepreneur Part 1: How Can I Best Organize My New Business?

    This is the first blog of a new series entitled “Tips for the New Entrepreneur” aimed at providing a New Entrepreneur with practical tips and pointers for exploring legal issues when setting up and growing a new business in Ontario.  These blogs may also provide, for your convenience, key official sources of reference.  

    With the excitement of turning a new endeavour into reality, the decision-making and multitude of choices and considerations related to the actual setting of your new business may quickly become overwhelming – not to mention somewhat confusing when trying to decipher and assess what is best from the vast array of information contained on the Internet or provided freely from peers, family and friends.

    This blog brings together information from various sources to serve as a guide to some of the key considerations when trying to make one of the first decisions concerning your business.

    What Is the Business Structure Best Suited for My Business?

    This is often one, if not the first, question of most New Entrepreneurs in Ontario.  Most technical nomenclature usually refer to three different forms of business structure: the sole proprietorship, a partnership or a corporation.

    Generally speaking, in a sole proprietorship which is a non-incorporated business, you will be the sole owner of the business with full responsibility for its debts and obligations.  You will be able to keep all of the company’s profits but will also be personally liable to its creditors should the business revenues and assets not be sufficient to pay the company’s expenses and debts.

    A partnership, also a non-incorporated business, is a structure whereby two or more people, the partners, combine their financial resources, knowledge and experience to create the business.  You and your business partners will share the profits and each partner will be jointly responsible for the debts and obligations of the business.

    The third business structure is the corporation, which is created by application to either the federal government or a provincial/territorial government. The corporation is a separate legal entity from its owner, namely the shareholder.  This means that as a shareholder of the corporation, you will be usually only liable for the maximum amount that you have invested in buying your shares in the corporation.

    When choosing the business structure that is most suitable for your business endeavour, you may wish to assess certain factors such as the type of business, the number of people involved, your risk tolerance, tax considerations and financial requirements. For the New Entrepreneur who is still undecided, it may also be useful to align its business structure with its long-term business plan. It is important to mention that some entrepreneurs may launch their business using one form of business structure, for example a sole proprietorship, and decide to change it, for example moving to a corporation model, at a later date as the business is growing.

    At a glance, this is an overview of some key considerations when choosing your business structure.

    Sole ProprietorshipPartnershipCorporation
    Advantages– Fairly easy and inexpensive
    to set up
    – Less regulations
    – Owner has direct control of
    decision-making
    – Owner keeps all profits and
    business losses can be
    written off against other income
    – Low set-up costs shared
    among the partners
    – Broader base of skills,
    experience and financial
    resources of the partners
    – Sharing of financial risks
    – Some limited regulations
    – Partners can deduct business
    losses against other income
    – Owners (shareholders) liabilities
    limited to their respective
    investment in the business
    – Ownership can be transferable
    – Continuance and longevity of the
    Corporation
    – Advantageous rate of taxation
    (specially for the Canadian
    Controlled Private Corporation –
    “CCPC”)
    – Opportunity to raise more capital
    Disadvantages– Proprietor has unlimited
    liability for all debts and
    obligations of the business
    – Income taxable at owner’s
    personal rate
    – Longevity and raising
    capital may become issues
    – Suitability and potential of
    partners’ disputes
    – Unlimited liability with the
    partners usually jointly
    liable for all debts and
    obligations of the business
    – Sharing of decision-making
    – Partners’ liabilities for debts
    and obligations survive
    death or retirement of
    partner
    – Set-up costs and complexity of
    organization
    – Additional regulations
    – Requirements for Canadian
    residency/citizenship of directors
    – Annual update of corporate
    records
    – Annual losses cannot be written
    off against other income of
    owners (shareholders)

    When Should The New Entrepreneur Incorporate Its Company?

    As you may have noted, each form of business structure has its advantages and disadvantages.  Therefore, there is not one formula that meets the objectives of every business.  This is often a decision that the New Entrepreneur will be making in consultation with its professional advisors, including its business lawyer.

    Together, they will assess a number of elements in order to determine the correct form of business structure.  Some of these factors include:

    • Tolerance for risk
    • Protection of the owner’s personal assets
    • Credibility to secure business financing
    • Growth and longevity of the business
    • Optimization of tax benefits and tax deferrals for the business and owners
    • Attracting and hiring qualified employees and contractors
    • Commercial dealings with other corporate entities (such as commercial contracts and leasing agreements, licenses)

    That’s it for this inaugural post in the Tips for the New Entrepreneur blog series. As demonstrated above, it is clear that starting a new business involves a multitude of decisions. For experienced advice on your best course of action regarding the structure of your business, contact the business law team at Merovitz Potechin LLP. And stay tuned for Part 2 in this series, coming soon.

    Additional Sources of Reference

    The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.

    Posted By: Chantale Cousineau-Mahoney of Merovitz Potechin LLP

    Associate

    Chantale is an associate lawyer at Merovitz Potechin LLP practicing in corporate and commercial law. Fluently bilingual and able to provide services in both English and French, Chantale strives to build strong relationships with her clients, from start-ups to more seasoned corporations and not-for-profit organizations.

    With a commitment to provide value-added and cost-efficient legal solutions in the full spectrum of corporate and commercial law, Chantale can assist business founders with incorporation and the setting up of a new business structure or the reorganization of an existing one. She also specializes in negotiating and drafting commercial agreements and dealing with corporate governance matters.

    Chantale holds a Juris Doctor degree and a Masters in Business Administration from the University of Ottawa. While in law school, Chantale won the Tax Executives Institute Award for highest marks and worked at several boutique law firms in corporate law. She also volunteered at the Employment Law Clinic. Chantale is also a Chartered Professional Accountant (CPA, CGA).

    Before her law practice, Chantale had an extensive career in the federal public service where she held the positions of Assistant Deputy Minister, Vice President and Chief Financial Officer in government departments and Crown corporations. She spearheaded several reorganizations and the negotiations of multi-million-dollar funding proposals and contract agreements in the health, security and communications sectors. This experience has allowed her to counsel several of her clients on legal issues and considerations with respect to government procurement.

    Above all her legal and business contributions over the years, Chantale is most proud of her community work aimed at fostering seniors’ rights and promoting animal welfare.

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