in acting in any capacity other than as traveler taking orders for any such extra-Provincial corporation, carry on any of its business in the Province, unless such corporation has received such license and unless such license is in force.

The Alberta Companies Act as amended in 1934, however, defines "carry on business" as transacting any of the ordinary business of a foreign company whether by means of an employee or an agent, and whether the company has a resident agent or representative, or a warehouse, office, or place of business in the Province. In practice, it is held that selling by mail from without the Province and receiving and filling orders booked by a buyer from Alberta at a place outside of Alberta, do not constitute transacting business within the Province. It will be noted that the Alberta Act is somewhat broader in its application in that foreign companies which solicit business through commercial travelers, even though only periodically, are required to register.

The Manitoba Companies Act, as amended in 1933, contains a broader definition than that found in any other Province, reading as follows: "Without limiting the ordinary meaning of the words 'carrying on business,' the taking of orders by travelers for goods, wares, or merchandise to be subsequently imported into the Province to fill such orders, or the buying or selling of such goods, wares, or merchandise by correspondence, whether or not the corporation has a resident agent or representative or a warehouse or place of business in the Province, shall be deemed to be carrying on of business in the Province."

The British Columbia Companies Act of 1929 provides that "carry on business" does not apply to an extra-Provincial company which has no resident agent or representative or no warehouse, office, or place of business in the Province, and the Saskatchewan Act of 1933 that the taking of orders by travelers for goods, wares, or merchandise to be subsequently imported into Saskatchewan to fill such orders, or the buying of such goods by correspondence, if the company has no warehouse, office, or place of business in Saskatchewan, shall not be deemed to be carrying on business.

Under the above definitions of "carrying on business," sales through traveling salesmen soliciting orders in Canada do not constitute doing business within any of the Provinces, except Alberta and Manitoba, so as to require registration and the payment of license fees.

While sales obtained through a "resident agent" constitute carrying on business within all the Provinces, the acts do not define that term; so it is difficult to ascertain the exact line of demarcation under varying sets of facts which may give rise to borderline cases, particularly in view of the fact that the enforcement policy of the company-law administrative officials of a certain Province may vary from time to time.

On the basis of reported experiences of American companies, it appears that the administrative officials of the Provinces, other than Alberta and Manitoba, have not compelled foreign companies to register and pay the license fees where sales are made through manufacturers' agents, brokers, or commission agents of Canadian nationality who merely solicit orders which are forwarded to the

American company for acceptance, or who maintain consignment stocks in Canada from which deliveries on such orders are made. Where a foreign company has a resident agent in a Province who has authority to act in its behalf, or maintains its own office, warehouse, or place of business in a Province, it is clearly carrying on business therein, and it would no doubt be required to register and pay the license fees in every Province in which any of these methods are employed.

Apart from the administrative enforcement of registration and licensing provisions which may be influenced to some extent by the need for the revenue derived from license fees, the interpretation of "carrying on business" may also arise through civil action in the courts where the defense of nonregistration of an extra-Provincial company may be raised by a local debtor where such company is shown to be carrying on business within the meaning of the respective acts. In doubtful cases it is advisable to consult a local attorney experienced in company-law practice in the particular Province.

In interpreting the language of the acts as to what constitutes "doing business" there is no well-settled rule underlying the court decisions, each decision resting on its particular statement of facts. There has been a tendency to regard the proviso, permitting business to be carried on through correspondence or nonresident travelers, as being the only limitation on the expression "carrying on business," thus construing it strictly against the corporation. Reference to several cases is made, not as an exhaustive discussion of law in the several Provinces, but to indicate interpretations that have been made in borderline cases.

In one case,1 a Pennsylvania corporation, not licensed in Ontario, authorized F, a resident in Ontario, to sell its engines on a commission basis. F, who never solicited orders, but took only those coming to him at his place of business, sold an engine for the plaintiff to the defendant and suit was brought for the purchase price. It was held that F was a resident agent of the plaintiff, doing business as an extra-Provincial corporation and that, being unlicensed, the plaintiff corporation could not maintain the action in the Ontario courts. In a Saskatchewan case,15 it was held that the mere setting up and starting the working of machinery sold by an extra-Provincial corporation did not constitute a carrying on of business, depriving the foreign company of its right of action because not registered.

Where an American corporation sold to the defendants in Winnipeg a carload of fruit f. o. b. American shipping point, the defendants rejected it on arrival and the company sold it at the best price obtainable. The plaintiff was not shown to have an agent or place of business within the Province and the transaction was a sale by correspondence through a broker and was an isolated act, the court held, therefore, that the American company was not doing business within the meaning of the Manitoba Companies Act, 1913, so as to prevent it from maintaining an action for loss sustained by reason of the rejection of the goods.

14 Bessemer Gas Co. v. Mills (1904) 8 O. L. R. 647.

15 Linde Refrigerator Co. v. Saskatchewan Creamery (1915) 24 D. L. R. 703; 51 S. C. R. 400. 16 Pacific Fruit & Produce Co. v. Dingle & Stewart (1922) 65 D. L. R.

In the case of Kominick Brick Co. v. British Columbia Press Brick Co. (17 B. C. R. 454), the plaintiff entered into a contract with the defendant for the sale of a brickmaking plant. Part of the contract required the plaintiff to erect and install the plant in British Columbia. The court held that this constituted doing business and refused to allow the plaintiff to recover. This case was appealed to the Supreme Court, which overruled the British Columbia court on the grounds that, the corporation later having obtained a license, it was entitled to have its action reinstated.17

EFFECTS OF NONREGISTRATION ON CONTRACTS

As a general rule, the contracts made by an extra-Provincial_corporation doing business within a Province without being licensed are not void but only unenforceable. The following clauses or their equivalents are found in the Company Acts of British Columbia,18 Manitoba,19 Ontario,20 and Saskatchewan.21

(1) A foreign corporation shall not be capable of commencing or maintaining any action or other proceedings in a court in respect of a contract made in whole or in part in the Province in the course of or in connection with business carried on without a license and contrary to the provisions of this part.

(2) In any action or proceedings, the burden of showing that it was so licensed shall be upon the corporation.

(3) Upon the granting or restoration of the license, or the removal of any suspension thereon, any such action or proceedings may be maintained as if such license had been granted or restored or such suspension removed before the institution thereof.

The Alberta act 22 provides that any foreign company required to become registered other than a Dominion company shall not while unregistered be capable of maintaining any action or other proceeding in any court in respect of any contract made in whole or in part in the Province in the course of or in connection with business carried on without registration contrary to the provisions of the act. There is no provision in the Quebec Extra-Provincial Companies Act 23 incapacitating unlicensed companies from maintaining actions.

DOCUMENTS required for REGISTRATION

In general the documents required for the registration of an extraProvincial company include an application or petition setting forth certain facts regarding the nature of the company and its operations; a copy of the charter certified as a true copy by the officer having the custody of the original; a power of attorney constituting a chief agent in the Province for the purpose of receiving service of process and notices; and a certified copy of a resolution of the board of directors authorizing the presentation of the application and the establishment of an office in the Province. The requisite forms can be ob

17 Kominick Brick Co. v. British Columbia Press Brick Co. 56 S. C. R. 538. 18 Companies Act, 1929, sec. 188.

19 Companies Act, 1932, sec. 380.

20 Extra-Provincial Corporations Act, Revised Statutes of Ontario, 1914, as amended. 21 Companies Act, 1933, sec. 200.

22 Companies Act, 1929, sec. 148.

23 Revised Statutes of Quebec, 1925, ch. 226.

tained on application to the Provincial Secretary of the Province in which it is proposed to establish an office or branch.

REGISTRATION FEES FOR EXTRA-PROVINCIAL COMPANIES

The registration fees for extra-Provincial companies are as follows:

ALBERTA

Same schedule of fees as required for incorporation in Alberta, but the maximum fee payable by a Dominion company is $150. In the case of a foreign company which employs only a portion of its capital in Alberta, and satisfies the registrar by affidavit or statutory declaration as to the amount of capital so employed in Alberta, such amount is deemed to be nominal capital and the fees payable are computed thereon. The amount of capital said to be employed in the Province includes property, office, stock in trade, bills receivable, and liquid assets to carry on business or effect sales. Where such capital does not exceed $20,000, or really no capital is employed, the minimum fee of $50 would apply plus miscellaneous fees, or $62.70 in all.

BRITISH COLUMBIA

Same schedule of fees as required for incorporation in British Columbia, provided that where the company has paid-up capital or assets exceeding $250,000 and proves to the satisfaction of the registrar that it is actually carrying on an established business beyond the Province in which at least 50 percent of such capital is invested or such assets are employed, the maximum fee is $250.

MANITOBAА

Same schedule of fees as required for incorporation, but such fees may be based on the capital of the company employed in the Province, subject to a minimum fee of $50. A fee of $25 is charged for a certificate of registration including the filing of all documents required to be filed with the application.

NEW BRUNSWICK

Extra-Provincial corporations may carry on business upon completing certain forms which may be obtained from the office of the Provincial Secretary and paying an annual tax of 1 percent of the capital invested or used in the Province, with a minimum tax of $100 and a maximum of $400; also must pay same annual filing fees as Provincial company.

NOVA SCOTIA

The registration fee is determined in the same way as the annual registration fees, but deducting therefrom a proportionate part for every full calendar month that may have elapsed between the date of registration and first day of the preceeding January.

ONTARIO

Same schedule of fees as required for incorporation in Ontario, but based on the capital to be used in the Province as authorized by the license.

PRINCE EDWARD ISLAND

Foreign companies must file certain documents for taxation purposes and pay the annual taxes.

QUEBEC

When the capital stock of the company is $40,000 or less, the fee is $100. When the capital stock is over $40,000, but does not exceed $100,000, the fee is $100, and $1 for every $1,000 or fractional part thereof in excess of $30,000.

When the capital stock is over $100,000, the fee is $160, and $2.50 for every $10,000 or fractional part thereof, in excess of $100,000. When the capital stock is over $1,000,000, the fee is $385, and $2.50 for every $10,000 or fractional part thereof in excess of $1,000,000. When the company has no determined stock the fee is $100. When the company employs only a portion of its capital in Quebec, the above fees will be charged on such part so employed in the Province, upon an affidavit or solemn declaration, stating what portion is so employed.

SASKATCHEWAN

Same schedule of fees as required for incorporation. Where an extra-Provincial company having a nominal capital exceeding $2,000,000 proves to the satisfaction of the Registrar that it is actually carrying on an established business beyond Saskatchewan in which at least 50 percent of its subscribed capital is invested, the fee shall not exceed $540.

COMPANIES INFORMATION ACTS

The Provinces of Alberta, Ontario, and Quebec have each enacted legislation under the tile of "Companies Information Act," requiring all companies doing business or selling their securities within the Province to submit a prospectus on commencing business and an annual return thereafter. The prospectus must contain the detailed information specified for the annual return and also all other information that may from time to time be required by the LieutenantGovernor in Council, and must be filed

(a) Upon the establishment in the Province of a head office or other office. (b) Upon commencing any business in the Province or upon the sale therein of any of its securities.

(c) Upon any material change in any fact set forth in the last prospectus filed; and

(d) Before the sale in the Province of any issue of securities, or any part thereof, other than that in respect of which a prospectus has been filed.

An annual return containing the following information and particulars must be filed by every company doing business in the Province of Quebec: 24

(a) The name of the company.

(b) The citation of the laws under which the company was incorporated. (c) The manner in which the company was incorporated, whether by special act, or by letters patent or otherwise, and the date thereof.

(d) Whether the existence of the company is limited, by statute or otherwise, and, if so, the period of its existence yet to elapse, and whether such period may be lawfully extended.

(e) Whether the company is a valid and subsisting corporation.

(f) A concise and general statement of the nature of the business or objects of the company.

(g) The names, residences, and post-office addresses of the president, secretary, treasurer, directors, and manager of the company.

(h) The name and post-office address of the chief officer or manager in this Province.

(i) The location of the head office of the company, giving the street and number when possible.

(j) The location of the principal office in this Province where the head office is situated outside the Province.

(k) The date upon which the last annual meeting of the company was held. (1) The amount of the bond or debenture debt of the company.

(m) A detailed statement of the real estate owned by it situated within the Province, where situated and the value thereof.

24 Sec. 4, Companies Information Act, Statutes of Quebec 1930, ch. 87.